O'Connor v. Larocque

special exception permit. accordingly for the We judgment holding reverse the of the trial court. Our clarifying here is limited to issue reached the trial which is whether court, the commission acted properly respect application change with to the zone Judge subsequently and Owens’ decision when it con- special exception permit sidered the defendant’srelated application. Because the trial court did reach not proper issue of whether the commission followed the procedure, regulations approving and statutes in special exception permit, we do not reach that issue. Therefore, we remand the case to the trial court for plaintiffs’ remaining consideration of all claims validity addressing the of the commission’s action in special exception per- connection with the defendant’s application. mit judgment is reversed and the case is remanded plaintiffs’ remaining

with direction to consider the claims. opinion justices

In this the other concurred. P.

THERESA O’CONNORET AL.v. LAROCQUE DOROTHY (SC 18648) X, Norcott, Palmer, Rogers, Zarella, McLachlan, C. Eveleigh Vertefeuille, Js. officially released 1, January 11

Argued November H. Parks, John appellant for the (defendant). Bruce D. Tyler, appellee plaintiff). for the (named

Opinion ZARELLA, J. The defendant, Dorothy Larocque, appeals1 from the judgment of the trial court quieting property title to certain real in plain- favor of the named tiff,2 Theresa P. O’Connor, predicated aon that finding plaintiff had disseized the defendant of her interest in property as a in tenant common. The defendant claims that the trial improperly court determined that plaintiff had overcome the presumption posses- by sion a tenant in common is not adverse to another cotenant3 had proven, and clear and convincing evi- appealed judgment The defendant from the of the trial court to the Appellate Court, appeal pursuant and we transferred the to this court (c) § General Statutes § 51-199 and Practice Book 65-1. plaintiff, John J. O’Connor was also a but he withdrew from the action party appeal. and is not to this The trial court found that the named plaintiff, O’Connor, acquired Theresa P. John J. O’Connor’s interest and, therefore, judgment at issue rendered in favor of Theresa only. simplicity, P. O’Connor In the of interest we refer to Theresa P. O’Con- opinion. throughout nor as the this Dictionary p. (9th 2009) (defining “cotenancy” See Black’s Law Ed. tenancy unity possession” as with two or more “[a] coowners who have giving examples joint tenancy tenancy common”); also, and as “a and see e.g., Beckwith, 79, 80, (1892). White 25 A. 400 possession.4 of an adverse The dence, the elements con- plaintiff responds properly the trial court presumption against cluded that she had overcome the by a tenant in common and had proven its elements. We with the underlying agree and, defendant reverse the accordingly, judgment the trial court. following

The record reveals the uncontested facts procedural history. and the defendant sisters, they are have two other Their siblings. a vacant 1971, and, statute,5 father died intestate solely passed part lot that he had owned as of his (lot) estate, widow, with a one-third interest to his passing interest parties’ mother, passing and a one-sixth probate each his four children. A certificate of devise interest was or descent this division of reflecting records of the town of Somers recorded the land February April 14, 27, 1980, 1972. On (town) incorrectly that she held full parties’ mother, believing plain- and the lot, conveyed title to the it to the conveyed deed by quitclaim tiff’s husband deed. The or ought “all such and title” as the mother right “ha[d] the lot. lot, to have” in the and not full title to entire the and of consequence misunderstanding As a of this failure to consult the town’s land plaintiffs apparent incorrectly believed, like her records, plaintiff the full to the lot. acquired that she had title mother, disregarded improperly (1) also claims that the trial court The defendant summary motion for memorandum of decision on the defendant’s its own reaching respect seeking equitable judgment a her claim relief with to claim, judicial (2) from took notice of evidence decision on her first and parties. prior involving that the trial the Because we conclude civil actions presumption improperly plaintiff the found that the had overcome court judicial possession by cotenant, despite taking against a its action adverse notice, those claims. we need not address (Cum. Sup. 1967) (intestate § 46-12 distribution General Statutes See (Rev. 1958) surviving spouse); § 45- General Statutes one-third interest to children). (intestate distribution of residue to the and her plaintiff mother became aware title, that there was a “cloud” on the that her mother only had inherited one-third interest the lot and that the defendant and her each had inherited siblings only a one-sixth interest in the plaintiff, through lot. The attorney, quit- her thus asked the defendant sign claim deed her one-sixth interest to the relinquishing plaintiff, February which the defendant refused to do. In April, 2007, spouse the surviving of one of the and the other who are not siblings sibling, to this appeal, conveyed respective their one-sixth interests to plaintiff by quitclaim result, prior the deed. As a to the plaintiff commencement of this the litigation, held a five-sixths interest in the lot, the defendant held a one-sixth interest.

On 1, 2007, October brought quiet appeal title action this underlying against defendant, full claiming ownership of the lot. The first count of complaint ownership alleged through pos- session. The alleged that she had claimed the subject property own, continuously as her and for more years, than fifteen in an open, visible, hostile, notorious, adverse and manner, exclusive from the time she had acquired her mother’s February 27, interest on complaint. the time she had filed the In support of her claim, she alleged planted she had trees evergreen perimeter along lot, paid all of property taxes, liability maintained insurance, mowed the grass, used the lot for disposing of tree branches and brush from other and otherwise maintained the prop- erty to the exclusion of In addition, others.

alleged that her name was listed the town’s assess- ment records as the owner lot but that she held only a five-sixths interest in the lot. plaintiff alleged, in the second count of the com-

plaint, by way ownership equitable of an claim. The basis for this claim that, was because the defendant in prevailed possession an earlier adverse action plaintiff nearly the identical against involving allega- respect property, plaintiff tions with to an adjoining prevail was her claim in reciprocal entitled on present action as matter of fairness. The defendant special defenses, plain- asserted six that the including possession tiffs claim of adverse was defeated presumption adverse that legal against applies when the are tenants in common, partition a counterclaim sale of the lot. seeking Thereafter, summary the defendant filed a for motion summary The trial court judgment. granted judgment in the defendant’s favor as to the second count of the complaint any on the it was ground “devoid of theory equitable liability.” allegations resembling equity The court added that “no rule in law or exists that vanquished the victor in an earlier case becomes the in merely a later one because their roles have reversed.”6 prevailed To the to the fact that the defendant extent dissent refers prior litigation properly to bolster its contention that the trial court case; dissenting in favor of the in this see footnote 2 of the ruled opinion; misplaced First, its reliance is for at least four reasons. the trial prior expressly litigation court declined to consider the outcome in the summary judgment granted when it the defendant’s motion for on the second equitable Second, plaintiffs complaint seeking relief. the trial count of the explained court in its memorandum of decision that it had considered the parties’ relationship prior litigation as evidence of the acrimonious notice, point plaintiff expressly conceded in her brief to this court. Moreover, light observation, in the court could not have done otherwise of its summary motion, prior granting judgment the outcome in the litigation involving image allegations did not mean that the mirror prevail reciprocal present was “entitled to claims in the case as a [her] “ ‘fairness,’ having rigors proving adverse matter of without to meet the possession.” Third, prior litigation the trial court in the did not address parties’ relationship effect of the as cotenants in its adverse analysis, and, therefore, litigation in that is irrelevant in the the outcome placed directly present context, relationship in which the cotenant has been appeal judgment Fourth, did not from the in issue. because the prior losing party, precedential litigation, in was the it has no which she indirectly Accordingly, insofar as the dissent relies on the outcome value. analysis, prior litigation of its such improper. reliance is pleadings positions The dissent also claims that “the offered and the taken present prior litigation] highly the defendant in are relevant this [the [to case]”; dissenting opinion; court, footnote of the because the trial in summary granting plaintiff’s judgment the defendant’s motion for on the equitable claim, aspects previous litigation among stated that “certain of the parties may bearing present [action], have a the resolution of the by way judicial estoppel, evidentiary as such of collateral admissions or plaintiff . . . admissions We first note that the has made no such claim. Second, prior litigation the trial court made no reference to the effect of the way estoppel, judicial evidentiary of collateral admissions or admissions present merely on its resolution of the claim in the action. The court explained history litigation parties of acrimonious between the was strong plaintiff given evidence from which it could conclude that the claiming right notice to the defendant that she was an exclusive to the property. implied The court neither stated nor it had relied on the parties’ pleadings positions prior litigation reaching and the in the in its conclusion, even when the defendant asked the court in her motion for explain prior litigation articulation to how it had utilized the record in the present deciding Accordingly, when action. the dissent’s claim that the parties’ positions pleadings prior trial court relied on the and the in the litigation resolve claim has no basis in is, best, speculative. highly the record and at Furthermore, citing allegations prior in the defendant’s and claims in the litigation present plaintiff to discredit her claim in the case that the did not give occupy property exclusively, notice of her intent to the dissent fails judicial According to consider our law on notice. to an authoritative treatise evidence, may judicially on Connecticut records be noticed for their “[c]ourt existence, legal content and effect. . . . judicial noticing “Care should be taken to avoid records in one [however] upon example, case as evidence which to find facts another case. For judicially testimony given case, one can notice that certain was but not that it was true. “Similarly, judgment in one case cannot be used to establish facts in complying hearsay (Citations another omitted.) case without with the rule.” Prescott, (4th 2008) p. C. Tait & E. (d), Connecticut Evidence § Ed. 2.3.4 97. Thus, judicial prior case, when a court takes notice of a it is not all specific carefully inclusive but is directed to records that must be construed subsequent litigation. present case, In the the trial court did not take judicial allegations prior litigation notice of the defendant’s and claims in the general parties previous but of the fact that the had been involved in two Moreover, although allegations lawsuits. the dissent relies on the in one of those actions its conclusion that the defendant had contended gave that she notice to of her exclusive of another exactly gave the same manner that the contends that she action, notice to the defendant in this the trial court made no determination prior regarding apply legal notice in the action and did not standard employed regard when the are tenants in common. We thus allegations prior dissent’s reliance on the defendant’s and claims in the present action as a distraction that has no relevance case. proceeded The case to a bench trial on the first count complaint and on the defendant’s counterclaim. length regarding testified at actions she allegedly had taken that demonstrated her exclusive the lot. of She testified that the lot was adjacent piece large to a of land on which her own situated, home was that one third of the lot consisted shortly acquired that, of woods and after she had her planted evergreen mother’s interest in she had 1980, remaining lot, trees around the two thirds of the which grassy consisted In addition, field. her husband periodically, many years, grass and, had mowed the for by granted requests she had annual the Four Fair Town parking during Association to use the lot for the town plaintiff fair. 1980, Since the also had maintained a liability policy, up insurance cleaned brush and leaves paid and all of the real estate taxes due on the lot.7The plaintiff finallytestified that not she had communicated twenty-five except years, with the for defendant for her request attorney quitclaim through sign an the deed way changed 1987, and that she had in which not learning she had used the lot after that she lacked ownership. sole an cross-examination,

On conceded that portion photograph showing aerial that the wooded adjacent evergreen road, the lot was to the planted trees she had were behind the woods on the property, bordering two sides of the lot her other separated from a that the fourth side of the lot was appeared existing neighboring to be what “fairly accurately represented . . . .” trees, the lot establishing that taxes The entered exhibits at trial prop between and 2007 were: $436.20; erty 1987, $403.28; 1988, $419.74; 1990, 1996, 1991, $465.82; 1992, $498.74; 1993, $510.26; 1994, $510.26; 1995, $17.05; $20.46; $17.34; 1999, $18.88; 2000, $19.65; 2001, 1997, $17.75; $18.27; 2002, $21.27; 2003, $27.53; 2004, $28.85; 2005, $20.45; 2006, $21.22; $21.78. planted that she had further testified “pretty apart” far and that motor vehi-

evergreen trees spaces cles could enter the lot in between the through addition, the lot was accessible through larger trees. as space plaintiff, between the trees maintained adjacent road. The well as the woods through plaintiff admitted that she had never built a fence posted around the lot or “No to deter Trespassing” signs you people Upon asked, from “how did entering. being you adversely possessing tell were [the defendant] her,” plaintiff responded: against “Through [the] lawyers. question court and When . . . the other up, two lots clouded came it was [involving titles] brought up.”

Upon completion plaintiffs testimony, of the her hus- Jeep trailer, band testified that his which Wrangler together approximately by measured seven feet wide “easily” long, lot, ten feet could be driven onto the as could his full size automobile. The defendant was the testify plaintiff last to and stated that the had never told her that claiming she was exclusive of the lot. attorney

During closing arguments, argued that the defendant had received notice of the plaintiffs claim property to the when the defendant litigation against plaintiff commenced similar seek- ing to resolve title to two other lots in which both parties an specifically interest. He “The argued: [plaintiff] case, testified that there was a and this had come to the attention at the time of [of] [the claim to the the various involving defendant’s] lots, this lot. And I’m to that including referring case purpose for the out that the pointing defendant cer- tainly correspondence had notice. There was from

Lit) [> . . . quitclaim deed.8 attorneys with to regard signing know that the say that the defendant didn’t [T]o say disingenuous, this is somewhat claiming was the least.” rejected the trial, the court

At the conclusion the. and found that the special defenses defendant’s by a presumption had overcome not adverse to another cotenant tenant in common is all evidence proven by convincing and had clear and possession. The requisite elements of adverse on the defen- in favor of the court also found lot before partition for or sale of the dant’s counterclaim plaintiff. title in favor of the quieting rendering judgment of its memoran- the trial court’s issuance Following seeking the defendant filed a motion decision, dum of basis for the trial court’s of, alia, an articulation inter clear that the record contained and conclusion findings to overcome evidence sufficient convincing by tenant in presumption against relating to multiple questions replying common. In pages to several repeatedly referred issue, this the court the “bitter discussing (1) of decision in its memorandum spoken who had not relationship parties,” between the “prior, involved in years and had been twenty-five parcel a different concerning litigation” acrimonious mother, and the defendant their conveyed land plaintiff. testified to the use of the lot as (2) cases prior of the two judicial took notice court also appeal parties.9 This between the involving litigation followed. 8 plaintiff prepared articulation, had stated that the trial court In its immediately litigation a prior effort to reach quitclaim “in an to the deed Thus, quitclaim parties.” issues between settlement of the quitclaim attorney deed was not the referred which the deed to sign plaintiff in 1987. the defendant had asked 9 way by decision, back of the trial court noted In its memorandum sisterly sisters, “nothing parties that, although there was ground were “They explained: relationship.” have been The court further their about Larocque v. previous this court. In lawsuits before in at least two involved

572

The defendant claims that the trial improperly court plaintiff concluded that the acquired title to lot possession. adverse specifically The defendant the trial challenges court’s conclusion had overcome the presumption that, as a tenant com- mon, her possession of the lot was not adverse to the defendant. The replies that the trial court prop- erly determined that she had satisfied all of the require- ments for an adverse possession, including overcoming presumption against possession adverse by a tenant in common. We with agree the defendant.

We begin with the applicable standard of review. possession claims that adverse should be question reviewed as a of fact “clearly under the errone- ous” standard, whereas the defendant argues that the issue question constitutes a subject of law ple- to our nary review. party Neither is entirely correct. “Adverse frequently is question said to be a of fact . . . question and such ordinarily province within the jury to determine. It has been precisely more stated, however, adverse usually is a question mixed lawof and fact, depending the cir- cumstances and conduct of the as shown by the evidence.”10 2 C.J.S. 719, Adverse Possession 292§ Percoski, [Superior judicial Court, Tolland, district of Docket No. CV-97- (February 18, 2003)],Larocque 0063927-S sued O’Connorboth as the execu individually, trix of their seeking quiet mother’s estate and title to two parcels Interestingly enough, case, Larocque land .... prevailed, in that successfully proving her title to two [those lots] under factually similar scenario. litigation “The brought by Larocque second against involved a [law]suit O’Connor, claiming unduly that O’Connor influenced their mother to disin- (Larocque). court, trial, herit her This judgment after [a] for [rendered] finding O’Connor appealed no undue influence. That decision was to the Appellate Court, judgment. Larocque which O’Connor, affirmed the v. 90 App. [167, (2005).” Conn. 156 876 A.2d 1229] 10Many apply See, our sister states e.g., also this standard. Lines v. State, 390, 396, (1980); 245 Ga. Mayberry, S.E.2d 891 Davis v. 241 P.3d (Okla. App. 2010);Peeples Bellingham,, 766, 771, 93 Wn. 2d (1980);Perpignani Vonasek, P.2d 1128 478, 490, 129 Wis. 2d 386 N.W.2d (App. 1986), part grounds, rev'd in on other 139 Wis. 2d 408 N.W.2d (1987). jury, or court Thus, province is the (2003). “[i]t from or doubt- jury, conflicting to determine sitting as necessary facts to consti- ful evidence the existence of . . . and that of the court tute adverse or found, law whether the facts decide as a matter of require- fulfill the undisputed, which are admitted or “If there is at least some possession.” of such Id. ments is sufficient to be sub- which evidence, although slight, tends to show the exis- jury, mitted to the and which to constitute adverse alleged tence of the essential facts if disputed, or, is undis- possession, and such evidence question as to the puted, character, is of a doubtful jury fact for the such facts is one of existence of under determination, be submitted to for should [it] or in case of a trial proper court; instructions from the one of fact for the alone, question the court jury. . . . sitting court as jury constitute “Whether the facts as found of law for the court. question is a question also is a of law The fact of adverse jury submitted to the and should not be for the court admitted, are or the facts with thereto regard where undisputed susceptible the evidence thereof is where conclusion, or but one reasonable inference jury to the on such go is insufficient the evidence in the record where there is no evidence question as of adverse jury finding could base a upon which the 292, pp. 719-20. possession.” Id., § repeatedly principle, this court Consistent with this of the trial court province is the has recognized “[i]t is based. which claim upon the facts to find [such a] posses- out a case of adverse Whether those facts make by this court.” law reviewable question sion is a 112 A. 165 Crofoot, Lucas 619, 623, (1921); Conn. Esposito, Associates, Ltd. see also Wildwood (1989) (stating 557 A.2d 1241 36, 43, 47, Conn. evidential facts may whether court examine reviewing 574

are or legally logically inconsistent with trial court’s conclusion of adverse plain- and rejecting tiffs’ contention that evidence was insufficient as matter support of law to posses- defendants’ claim of adverse sion); Loewenberg Wallace, 147 v. 689, 699, Conn. 166 A.2d 150 (1960) that (concluding mere fact that fence had been in place for more than years fifteen did not, in and of itself, as matter of law, require finding of acquisition by of title adverse possession); Hagopian Saad, v. Conn. A. 257, 199 433 (1938) (stating that reviewing may court legal examine conclusions drawn from by facts found trial posses- court adverse sion action); Goodwin v. Bragaw, 39-40, 86 A. 668 (1913) (stating facts found were “inconsis- tent with legal conclusion other than that the defen- acquired by dant had adverse possession title to the space portion over that of the gangway occupied by structure”); Layton Bailey, 22, 28, Conn. [the] A. 355 (1904) (stating may court reviewing examine conclusion of on basis of evidential facts when some or all of facts by found trial court appear to be legally logically inconsistent with con- clusion). The same principle applied has been context of other Bristol Tilcon takings. See Minerals, Inc., 55, 83, Conn. 931 A.2d 237 (2007) private (“Whether property has been taken inverse question condemnation is a subject of law plenary to our review. . . . The trial court’s conclusions must stand they unless are legally or logically inconsistent with the they facts found or unless involve application some erroneous rule lawof material to the case.” [Cita- tion omitted; quotation internal marks omitted.]).

Because a trial court is afforded broad discretion in making its factual those findings, findings will not be disturbed court reviewing they unless are “clearly erroneous light the evidence and the pleadings the record as a whole. ... A finding clearly of fact is erroneous when there is no evidence the record to support although it ... or when there is evidence reviewing on the entire evidence it, the court conviction that a with definite firm left .... A trial court’s find- mistake has been committed supported by ings case, in an adverse if reviewing binding evidence, are on a court sufficient quotation (Emphasis . . . .” internal marks added; Troy, omitted.) 297, v. 12A.3d 306, Caminis 300 Conn. clearly (2011). applying 984 “In erroneous standard [a]ppellate the record review, courts do not examine have to determine whether the trier of fact could Instead, reached a different conclusion. we examine the it trial in order to determine whether court’s conclusion factually supported. legally . . . This was correct duty appellate with as an tribu- distinction accords our retry, proceedings of the review, nal to and not to quotation omitted.) (Internal marks Saun- trial court.” (2009).11 535,978A.2d487 Firtel, ders v. majority claims that it is not clear whether “the considers The dissent particular possession as a element of adverse such the conclusion that subject finding, given be a factual notice or intent is satisfied a case to conclusion, subject appellate review, or, [alternatively], alegal to deferential dissenting opinion. 3 of the The dissent states to de novo review.” Footnote that, view, warranted, a deferential standard in its reversal is “even under support review,” “(1) the trial court’s if there is no evidence findings; (2) slight finder so that no reasonable fact factual the evidence is by possession and convinc of adverse satisfied clear could find the elements satisfy evidence; findings ing (3) fail to or factual [trial court’s] possession.” legal Id. standards for adverse established Caminis, opinion disagree As we stated in this is unclear. We that by reviewing finding case will be deemed factual in an adverse law, clearly erroneous, a matter of when and thus insufficient as court to be support it when there is in the record to there is either no evidence reviewing the entire and “the court on evidence to it insufficient a mistake has and firm conviction that evidence is left with the definite Accordingly, Troy, supra, Conn. 306. . . . .” Caminis v. been committed principal our view and that difference between it would seem that conclusions defer to the trial court’s the dissent is that the dissent would findings factual even when the court’s on the elements of adverse supported by reviewing insufficient court would consider evidence that a are under Caminis. respect

With to the standard of proof, “[ajdverse pos- session is not to be made out inference . . . but positive proof. clear and . . . [Cjlear and convincing proof denotes a degree of belief that lies between the required belief that is to find the truth or existence of ordinary an civil action and the [fact issue] required belief that is guilt prosecu- find a criminal . . . tion. is if sustained evidence induces [The burden] in the mind of the trier a reasonable belief that the facts probably asserted are highly true, probability they are substantially true or exist is greater than probability they are false or do not exist.” (Citation omitted; quotation internal marks omitted.) WildwoodAssociates, Ltd. v. Esposito, supra, 211 Conn. 42. Application pertinent legal standard to the trial court’s factual findings subject plenary to our Davis review.12See Margolis, Conn. 421-22, 140 A. 823 (1928); see also Minerals, Bristol Tilcon may findings To the extent we have characterized of adverse prior questions fact, in some of recognized our cases as we also that findings legally such See, e.g., must be consistent with the facts found. Wildwood,Associates, Esposito, supra, (“[ajdverse Ltd. v. 211 Conn. 43 question fact, by is a and when found the trial court will not by be facts, reviewed this court as a conclusion from evidential unless it appears facts, them, legally logically necessarily that these or some of are or [emphasis added; quotation inconsistent with that conclusion” internal omitted]); Realty Sundberg, 457, 461, marlrs Wadsworth Co. v. 165 Conn. (1973) (“[t]he 338 A.2d 470 conclusions which the court reached must stand they legally logically unless are or inconsistent with the facts found or they application unless involve the of some erroneous rule of law material [emphasis added]). explained to the Margolis, case” As we in Davis v. 107 (1928), Conn. 140 A. 823 a conclusion or inference that results from applying legal a fact; standard to the facts found “is often called one of [but] strictly speaking fact, involving,first, it is one of law and the ascertainment of standard, application Id., and then its to the case in hand.” 420-21. The accepted that, findings settled, judgment rule is when the factual are “[a] rendered facts will found not be [on] reversed or set aside unless some applied, erroneous rule lawof material to the case has been or unless a reached, drawn, fact, many conclusion has been or an inference from a facts, found, judgment or the facts which affects the rendered in material degree legally logically facts, and is or inconsistent with that or those or is illogical unsound, plain reason, so or or so violative of the rules of as to be Id., 422; Hosiery unwarranted in law.” see also Winsted Co. v. New Britain Knitting Co., 565, 575, 38 (1897) (“[t]he judgment A. 310 or ultimate subject of law is supra, (question 284 Conn. 83 Inc., trial court’s conclu- review, that plenary meaning “[t]he they legally logically unless are or sions must stand they found or unless involve inconsistent with the facts of law material of some erroneous rule application “The quotation omitted]).13 marks to the case” [internal special issue, facts in as ascertained from conclusion of a court [on] law, by trier, and as such and settled is a conclusion of the evidence by by court; is true whether such facts are settled reviewable this and this jury special finding judge”). special of a or a of a verdict Thus, repeatedly characterizes the trial court’s find- because the dissent subject ings cases as to deferential review of fact in adverse acknowledging reviewing determining whether court’s role without they insufficient, findings legally either because are inconsistent such are they supported by complete are with an established rule of law or because seriously by evidence, analysis its is flawed. lack of evidence or insufficient majority improperly “for that the relies on Bristol The dissent claims proposition plenary court’s factual conclusions review trial present articulated case” because the standard of review is warranted “ they namely, Bristol, court’s conclusions must stand unless that a ‘trial they legally logically found or unless are inconsistent with the facts ” case,’ application erroneous rule of law material to the involve the of some dissenting opinion. highly The dissent misun Footnote 6 of the deferential. discussed, pos previously citation to Bristol. As we derstands our question cite Bristol for the mixed of law and fact. We thus session is a posses proposition legal regarding adverse that the trial court’s conclusions plenary subject claims To the extent that the dissent also sion are review. very deferential, foregoing language nature from Bristol is its language reviewing countless times have used similar we note that courts Big Y Foods, See, e.g., plenary describing of review. Fisher standard Inc., 414, 423-24, (2010) (“[w]hen ... court the trial Conn. 3 A.3d 919 plenary law, and we must decide whether our review is draws conclusions support logically legally find in the facts are correct and its conclusions quotation omitted]); appear Crews v. marks in the record” [internal appellant’s (“[W]hen Crews, 153, 161, (2010) an A.2d 1060 Conn. alleges the court were insufficient that the facts found claim question presented conclusions, of fact and legal with a mixed its we are applies. plenary . . task is to . Our standard of law to which review legally logically and correct conclusions are determine whether the court’s quotation appear support record.” in the facts that [Internal and find 125, 133, Bridgeport, Associates, omitted.]); LC v. 292 Conn. PJM & marks law, (“[w]hen conclusions of (2009) . . . the trial court draws A.2d 24 legally plenary conclusions are we must decide whether its our review is and appear support in the record” logically in the facts that correct and find and 223, DiNoia, Gateway omitted]); v. 232 Conn. quotation Co. marks [internal 229, (1995) (“[w]hen . . court draws conclusions . the trial 654 A.2d 342 plenary law, whether its conclusions and we must decide our review is of proof party burden of is on the posses- adverse claiming sion.” v. Troy, supra, Caminis 300 Conn. 305.

We next consider the governing legal principles. Despite subject, extensive case law on the the root of possession statutory.14 adverse in our law is General year Statutes 52-575 establishes a fifteen (a)15 § statute legally logically support appear are and correct and find in the facts that quotation omitted]); Altray Groppo, in the record” marks v.Co. [internal 426, 431, (1993) (“[o]ur 224 Conn. 619 A.2d 443 review of claims is [the] plenary legally . . . and we will reverse the trial court if its conclusions are logically support appear or incorrect or find no in the facts that in the omitted]); Buildings, Bannon, record” Morton Inc. 222 Conn. [citation 49, 53, (1992) (“[w]hen 607 A.2d 424 . . . the trial court draws conclusions law, plenary our review is and we must decide whether its conclusions legally logically support appear are and correct and find in the facts that record”); Express, Co., Auto Glass Inc. Hanover Ins. 98 Conn. App. 784, 792, (2006) (“[b]eeause 912 A.2d 513 the resolution of claim [the] question support involves a of whether the facts found were insufficient to legal conclusion, presents question the court’s this issue a mixed of law cert, apply plenary review”), denied, 914, and fact to which we 281 Conn. (2007); McCue, App. 721, 726, 916 A.2d 55 Winchester v. 91 Conn. 882 A.2d (“[a]s asserts that the facts found were insufficient to legal conclusion, presents question the court’s this issue a mixed apply plenary review”), denied, of law and fact to which we cert. (2005). 888 A.2d 91 14Although possession Connecticut, the scheme of adverse like that of states, repose against all other is based on a statute of for actions an adverse possessor, compel the mere existence of such statutes does not the existence possession today. contrary, in the form that we know To the “[b]y terms, [including merely their most statutes of limitation Connecticut’s] judicial recovering terminate the record owner’s access to assistance in possession of his land. The doctrine of adverse takes these conceptual step by providing possessor statutes one further that the adverse actually gains title, legal displacing . . . the record .... owner This result ineluctably language Stake, does not flow from the of the statutes.” J. “The Uneasy Possession,” Case for Adverse (2001). 89 Geo. L.J. 2421-22 provides: (a) person entry § General Statutes 52-575 “No shall make years right into lands or tenements but within fifteen next after his or years title to the same first descends or accrues or within fifteen next after person persons such or have been ousted from of such land or tenements; every person, entering aforesaid, heirs, not as and his shall utterly entry afterwards; entry be disabled to make such and no such shall sufficient, fifteen-year period, any person persons be unless within such or claiming ownership right entry of such lands and tenements and the any person against persons thereof who are actual possessor. an repose of action to oust an adverse appears and 52-575 substance, (a) both form § have largely unchanged original remained since its in in statute, turn, enactment 1684.The 1684 was derived from a 1624 statute.16 See General Statutes English (1821 possession tenements, gives writing person of such lands or notice in to the persons possession in or of the land or tenements of the intention of the person dispute possession person giving right the notice to of or of the persons prevent party given to whom such notice is and to the other or acquiring right, being from such and the notice served and recorded provided interruption as in sections 47-39 and 47-40shall be deemed an of prevent acquiring right the use and and shall of a thereto any thereafter, length the continuance of the use and for of time provided year thereupon an action is commenced within one next after the prescribed recording begin of such notice. The herein not limitation shall entry any reversionary against right run owner of a remainder or estate, another, interest in real which is the adverse until expiration particular preceding or reversion- estate such remainder ary estate.” Actions, Law, Avoiding See An Act for Limitation of and for of Suits in I, (1623-24). provided part: quieting 21 Jac. c. 16 That statute in relevant “For avoiding of Mens Estates and of Suits .... That all Writts of Formedon Descender, Reverter, any Formedon in Remainder and Formedon in at tyme any brought hereafter to be sued or of or for Mannors Lands Tenements any any pson psons Title, or Hereditaments whereunto or now hath or have pursue any Writt, have within or cause to or such shall be sued and taken yeares Parliament; Twentie next after the end of this . . . Session of yeares expired, pson psons, any after the no or or of their said Twentie mayntayne any any heires, shall have or such Writt of or for of the said Hereditaments; Mannors Lands Tenements or and that all Writts of Remaynder Formedon in Descender Formedon in and Formedon Reverter any whatsoevr, any or Hereditaments at of Mannors Lands Tenements other tyme any brought hereafter to be sued or occasion or meanes of Title yeares happening, sued and taken within Twentie or cause hereafter shalbe fallen, next after the Title and Cause of Acción first descended or and at tyme years: pson psons no after the said Twentie And that no or that now any Entry any Right hath or Title of into Mannors Lands Tenements or them, Hereditaments nowe held from him or shall thereunto enter but within Twenty yeares Parliament, next after the end of this . . . Session of or twenty yeares any accrued; within next after other Title of and that Entrie any any pson psons tyme no or shall at hereafter make Entrie into Hereditaments, yeares within next after Lands Tenements but Twentie Right his or their or Title which shall hereafter first descend or accrue to same; psons Heirs, entring, thereof so not and their default such made; shalbe utterlie excluded and disabled from such Entrie after to be contrary Any notwithstanding.” former Law or Statute to the possession 59, 1 n.l. Connecticut’s adverse

Rev.) tit. § forms, and enacted originally in both its current statute, period limitations from original English reduces the years fifteen, modernizes the statu- twenty slightly tory exception and removes one from the stat- language and purview. respects, (a) ute’s In all other 52-575 § remarkably predecessors original are similar to the its English statute. further refined and years,

Over the this court has In possession. 1811, the doctrine of adverse developed consists of “a possession we stated that an adverse proprietor, but entered possession, legal not under directly indirectly consent, into without his either possession, by which he is disseized and given. It is a disseisin, To make a possessed. ousted of the lands so necessary, it that the disseizor should claim title is not by necessaiy, to the lands taken him. It is not that he deny legal proprietor. should or disclaim the title of the No; necessary only, into, it is that he should enter and they possession lands, take the of the as if were his own; profits, to take the rents and and so with manage proprietor himself would man- property, legal as by If and so taken, used, with it. be so age any one, title, he claims no but avows himself though by proprietor such wrongdoer, yet, act, legal to be truth, determine, is disseized. ... In whether or only not, possession adverse, necessary, be it is can be considered as the construc- out, find whether it possession proprietor. tive . . . If it be legal consent, against will, without such his it is adverse.” Atwater, Day Bryan 181, 188-89 (Conn.) (1811). concisely that “the 1860, legiti- we stated more inquiry” possession mate in a case of adverse was ownership actual, “had the party claiming whether open, occupancy adverse of the contro- it . . . property, claiming verted as own and actu- [his] ally all from excluding persons possession,” other its years. Huntington an uninterrupted period for of fifteen v. Whaley, We added that (1860). is not to be made out infer- “[a]n . . . positive proof’ ence but clear and and that strictly "applied. doctrine should be Id. In we implicit Hunting- explained further what had been ton, namely, that evidence of an open, visible and exclu- sive an uninterrupted period for of fifteen years was required to demonstrate that the adverse possession had occurred with the “knowledge and acquiescence and, therefore, of the owner” owner had been a full given opportunity to assert his rightful claim. School District No. 8 v. Lynch, 33 Conn. 330,334 law (1866). requires that, Present likewise “[t]o by possession, establish title adverse the claimant must possession oust an owner of keep such owner out interruption years by without open, for fifteen an visible and exclusive possession under a claim of with right the intent to use the as his own and without the consent of the owner. ... A of adverse finding by positive is to be made out clear and proof. . . . proof party The burden of is on the claiming adverse possession.” quotation marks omit- (Internal Foss, Alexson v. 599, 276 Conn. 614 887 A.2d ted.) n.13, 872 (2006). by cases claims one cotenant involving against

another, heavy by we have added to this burden presumption against applying possession. presumption that, The rationale for this “in view of . . . posses- the undivided interest held cotenants ordinarily sion taken one is considered to be the possession by all and not adverse to cotenant.” v. Twarkins, Ruick 149, 157, 171 Conn. 367 A.2d 1380 Bryan Atwater, supra, Day see also v. 5 (1976); (Conn.) Blakesley, Day Doolittle v. 191; 265, 4 272-73 (Conn.) 3 Am. Jur. 2d Adverse Possession 201 (1810); 243-44, § words, presumption In other is based on a (2002). cotenant’s is not neces- that one recognition See Ruick with the title of the others. sarily inconsistent Camp Camp, v. Twarkins, supra, 157; v. see also Atwater, supra, Bryan v. 191. Conn. 303 (1824); presumption may be overcome in cer Although the circumstances, easily tain it is not done. cotenant “[A] adversely to other cotenants must show claiming distinctly unequivocal of such an nature and so actions the other cotenants that the rights hostile to the clear and unmistakable.” Ruick intention to disseize is Twarkins, supra, only must an v. 171 Conn. 157. Not actual intent demonstrated; id., to exclude others be Newell Crofoot, see also Lucas supra, 624; v. 95 Conn. Woodruff, Paletsky Pal v. v. 30 Conn. (1862); Dia etsky, 490 A.2d 545 App. 587, 589, (1985); 3 Conn. Boynton, mond v. Sup. 616, 619, 38 Conn. 458 A.2d 18 “an ouster and proof but there also must be (1983); openly notoriously hostile exclusive so that the cotenant will have notice of the adverse claim.” Twarkins, supra, 158; Ruick see (Emphasis added.) Jones, also Hill A. 12, 16, (1934) presumed will not be from mere exclusive (“[o]uster by one property cotenant”). of the common required to over- type of conduct discussing v. Wood- Newell in presumption, explained come the we with an ruff, supra, that acts “consistent for his share honest intent to account to his co-tenant rents, of all the profits, the rents and as collection taxes, occupation enjoyment and payment of all the premises like, ‘equivocal,’ and the are termed the entire be or com- may possess willing one for all and because necessarily other acts all, to account to pelled [whereas] adversely and hold to his evince an intent to exclude refusing ground as to account on co-tenants, such property, making no right that the co-tenant has an occupying to the whole and under explicit claim . . . right claim of to the whole avowed or notorious possession, of the co-tenant and denying right his or to let him into refusing acknowledge right possession upon demand made. . . . difference [T]he may is in the kind of evidence which it be in the two cases. As a co-tenant it can proved against merely by with proved not be acts which are consistent an honest intent to and conform to the acknowledge co-tenant, might of the such acts be rights although sufficient evidence of an ouster between the if tenancy there was no in common and each claimed the eminently proper it has been deemed whole. Hence ejectment an a safe, bringing against before action of to test the intent with which the common, tenant holden a formal demand to be let into property is enjoyment claimed; of the and a refusal fur- right a nishes that clear evidence of ouster which demand and Id., refusal furnish of a conversion trover.” 497-98. very establishing Connecticut is not alone in a high presumption. generally bar to It is overcoming jurisdictions relationship agreed that, across because presumed whereby one of trust between cotenants for the benefit of tenant common holds the others, act, conduct, “there must be some hostile part possessor amounting or declaration on the an repudiation rights to a cotenants’ asser- [the] possessor, tion of exclusive title in the of which knowledge (Emphasis cotenants have or notice.”17 majority appears . . . to believe that there The dissent states that “the dispossess only adequate when there can be notice of a cotenant’s intent to closely it, express something akin to is either an notification or [but] requirement.” thorough review of the cases reveals that there is no such reject dissenting opinion. accompanying this Text footnote 8 of the We stated, suggest, reading opinion. nor do we of our This court has never necessarily express, closely express. or akin to To the that notice must be actual, express, contrary, although the court Newell observed by entry property way refusing on the notice of to allow cotenant ouster, response would furnish clear evidence of it also to a formal demand “any may by an actual be demonstrated acts which show stated that notice permanently rights.” from his Newell intent to exclude the co-tenant Woodruff, supra, has determined that actual 30 Conn. 497. Our case law thus 245, supra, 3 Am. Jur. 2d 202. The mere unan-

added.) § one possession nounced intention or exclusive of coten- ant is not sufficient a claim of adverse possession involving in cases tenants common. See 204, pp. and 245-47. id., §§ jurisdictions have as we did recognized, Other also occupies in Newell, that, one cotenant “[w]here notoriously property owner, using common as the sole exclusively, it, it to such coten- improving taking profits, ant’s own use the rents and or otherwise exer- ownership over it such acts of as manifest cising repudiate any an intention to unequivocally ignore cotenants, occupation in other such or acts and right ownership of will claim sole amount to disseisin of cotenants, possession the other and the will be regarded they time knowledge as adverse from the have of such occupation acts or and of the claim of exclusive owner- ship. However, leasing possession out the use and premises the entire is not in itself an ouster or disseisin of cotenants nor is it sufficient to establish an adverse them. against significance Whatever atta- making improvements ches to the on the land particular on their nature and extent and on the depends presented, improvements situation and the making ordinary provide does not in circumstances a decisive indication of adverse to other cotenants. payment by of real estate taxes Although cotenant possession may prerequisite not be a acquiring possession, proper title it is to consider payment of taxes as a factor in whether a determining ownership claim of exists or a claim is knowingly only, preferred used, notice is not the or even the or most often method may convey which one cotenant in an intent to dispossess other, nothing opinion and we have said in this to cast doubt viability principle. that, on the continued of that We add to the extent the possessor’s distinguishes “giving dissent between the adverse notice” and party’s notice”; “havpng] dissenting opinion; the ousted 8 of the footnote it is a distinction without a difference.

adverse, but the payment may fact of of taxes be inade- quate or not given much weight.” (Emphasis added.) Id., 209, p. see also nn. 1 252; id., § through (surveying law of other jurisdictions).

Mindful principles, of these this court has considered claims of possession by adverse one cotenant against only another on a few occasions.18 In v. Crofoot, Lucas supra, 95 Conn. 621, 623-27, upheld we a ruling of possession adverse favor of a who had held partial title to an twenty-one years. island for We first observed that, gaps the record . . . “[b]ecause the full legality of the title only be [could] by proof made out of all the elements of an adverse possession . . . .’’Id., 623. We then explained that step first and vital such a establishing “[t]he [in claim] proof entry must be the of an upon premises and an ouster of the other cotenants”; id.; and that “ouster” meant “a attended with such circumstances as to evince a claim of exclusive and a right title, denial of the of the other right participate tenants to profits.” (Internal quotation marks Id. omitted.) ultimately 624. We concluded that “the effect” of the quitclaim plaintiffs predecessor deed from the tenant convey common “purporting the whole title” to was “to assert his own deny title and to the title of the other cotenants. . . . When grantees recorded this deed and entered and took thereunder, their presumed to have [was] been under the deed itself and not under the title of They the cotenants. entered under a claim and color and this right, equivalent to an ouster of the other cotenants, they adversely. as to whom thence held It perma- showed an actual intent to exclude the cotenant that, years, approximately Wenote in well over 200 nine cases have been court, strength presumption decided this which demonstrates the against possession, that, cases, of those nine five have been decided in favor of the claimant. quo- internal omitted;

nently rights.”19 (Citation from bis concluded that Id. We further omitted.) tation marks sources, claiming Lucas, among “a other The dissent relies placed is aware that the adverse notice when she cotenant is on constructive possessor the outset under an exclusive claim takes common land from situations, that, right, cotenant” and those rather than as an avowed “[i]n entry inception majority in its much ‘inthe case of an hostile the rule is that possession legally that the is is needed to establish less evidence possessor’s that constructive ....’” Aside from the fact to the cotenants present case, given in the the this kind is irrelevant notice of a tenant in common until did not know that she was concession that she occupy notify the lot exclu defendant of her intent to 1987 and did not attorneys, sively through and and her we deem Lucas until 1997 the court clearly quoted inapplicable in this factual context for another reason. law quitclaim Although that a cotenant’s deed the court in Lucas determined convey notice, purporting was tantamount to such that the to full title cotenants; Crofoot, adversely grantees see land to the other Lucas held the quitclaim supra, 624-25; well knows that the deed to the dissent convey purport present did not to from her mother in the case held, partial which was a but such interest as her mother the entire lot from her father’s in a certificate of devise or descent interest described Moreover, previously had been recorded in the land records. estate that expressly acknowledged quit that the and the trial court both contrast, convey plaintiff. title to the full title to the claim deed did not possessor’s property name alone. See in Lucas was recorded in the adverse predecessors id., case, that one of several 621-24. In that the court observed portion explicitly deeding in his in who had a cotenant stated title been property in title that “all of the other to his successor [covenants portion him,” conveyed and that the deed to the other to [their interests] portion property “expressly to that of the island of the warranted title any Id., Accordingly, legal persons.” against 625. the claims of all other quitclaim pur regarding principle a deed case the effect of Connecticut possession convey property porting in interest in to the cotenant the entire circumstances, inapposite present and the dissent’s insistence that is proposition taking under color of . . . established the broader “Lucas grantee’s quitclaim provide any deed can at least some indication exclusively” misplaced. added.) (Emphasis hold the intent to expressly opinion. Indeed, dissenting the court Lucas Footnote 14 of the urge rejected argument it stated: “The defendants this exact when conveyed quitclaim part of the island was were deeds under which the north deeds, quitclaim grantor’s ‘right, title and interest’ is and that a of all the cotenants, and does the existence of an interest not inconsistent with warranty deny between the effect of a and not that interest. This distinction which, though valid; quitclaim generally, a deed deed is doubtless but express quitclaim, terms a disclaimer and disavowal form a contains warranty others, is of as much value as a interest in cotenants or entry adversary giving character of the and be in notice of the deed could Crofoot, supra, Lucas v. 624-25. thereunder.” the adverse had been “continuous and open notorious,” twenty for more than exclusive, years, “much less actual use of island although [the] necessary ownership claim of than establish [a] [was] farm [required would have been the case of tillable in] . . . 626. Id.,

Similarly, Twarkins, supra, in Ruick v. 171 Conn. 149, entry we concluded that a cotenant had established premises prevail and ouster sufficient to on a claim pro of adverse because she had obtained a dissent, recognizing present while the distinction between the case Lucas, question states that “the relevant this is whether a [in case] quitclaim deed, conventional which is nevertheless believed all convey property, provides any full title to the evidence to exclusively finding plaintiff trial court’s that the intended to hold the land very least, specifically . . . The dissent claims that the as we “[a]t explained Lucas, quitclaim places holding in under color of title of a deed duty possession an affirmative on cotenants out of to make a ‘hostile move support question, framing in of the of their own title dissent’s case, however, disregards legal significance in an essential fact of this namely, (certificate) reflecting that a certificate of devise or descent respective family interests of various members in the lot had been recorded approach disregards follow an on the land records. This court cannot Although plaintiff legal essential facts. the mother’s deed to the resembled a deed, certificate, quitclaim light had be in conventional it to considered preceded which the deed on the land records and could have been discovered quite easily. misapplies The dissent also Lucas because that case did not but, quit- quitclaim deed, rather, an involve a conventional unconventional property expressly full title to the on the adverse claim deed that conferred possessor. reason, quitclaim is for this and not because the deed was a It form, lack of “hostile deed in that the court in Lucas concluded that the permit- [by nonpossessing in of their own title” move cotenants] properly requirements to conclude that the of adverse ted the trial court Crofoot, supra, had been satisfied. Lucas v. 95 Conn. 626.Accord- analysis inapplicable ingly, in this context because the court the dissent’s was, premised understanding that the deed in its conclusion on its Lucas analysis warranty any event, effect, the dissent’s under Lucas in deed. In quitclaim regarding belief that she intended to deed and 1980, exclusively in and the from the time she took hold the lot quitclaim jurisdictions concerning conventional deeds on cases from other present relies, context because this which the dissent are irrelevant concluding in could not have court must follow Newell they parties given first learned that were notice before when opinion accompanying 22 this and text. tenants in common. See footnote declaring owner of the her to be the sole bate decree property, registered been the decree had contested occupy the land records and she had continued thirty years. improve property than See for more by Consequently, we found initial ouster id., 154, 158. in in Lucas and Ruick when a tenant common both property in her name. title to the had been recorded supra, 158; Crofoot, 624; v. 95 Conn. id., See Lucas Hagopian supra, 257-59 Saad, see also Conn. acquired (concluding that land agreement on basis of executed tenants in common, deed, and recorded same manner as disputed property dividing property granting plaintiff, occupied property fif who had for more than years). teen This is consistent with our discussion registration although suggest Newell, we do not possessor’s title in land records in the adverse name only way alone is the to demonstrate ouster when the are tenants common. Camp Camp, example, supra, For we concluded improperly failed that the trial court jury presume that it was authorized to an instruct the period ground that, ouster of the on the for a fifty-seven years, members of an defendants, society, ecclesiastical had claimed the as the society’s parsonage own, had used it as a and had had possession sole undisturbed with- and any payment being claim out the of rent without by profits made for the land or the derived reaching Id., 298, conclusion, therefrom. 302. In Eng. v. Prosser, we relied on Doe ex dem. Fishar Rep. (K.B. 1774) leading (Doe), “a case” deemed subject, King’s on the in which the Court of Bench in ’ “thirty-six years England had determined that sole and by uninterrupted possession, one tenant in common, to, made, without up, by account or demand or claim set companion, ground [was]

his a sufficient for co-tenant.” an actual ouster of the jury presume to Camp Camp, supra, 302-303. added.) (Emphasis Justice, first acknowl- Mansfield, Lord Chief Doe, of tenants in com- that, the case edged generally, “[i]n in common, . of one tenant possession mon . . common, can never bar his nomine, as tenant eo is not possession . . . because such companion companion, his but in adverse to the of right by share, . . him his paying of their common title . and refusal him co-tenant. Nor indeed is a acknowledges he But sufficient, without his title. pay denying to of itself by moiety, the co-tenant of his the other upon if demand title, saying and denies his he claims pay, denies to pay, possession will not and continues whole and is adverse and ouster enough.” . . . such 1053. Lord Mans- Prosser, supra, Doe ex dem. Fishar appeared there that, though then determined even field had no evidence in that case that to be or had made ejectment possessor of the adverse sought been “warranted demands, jury such an adverse presume of time ... length Willes Aston, Justices . . . .” Id. Joined and ouster in individual expressed similar views Ashhurst, who “undis- explained that an opinions, Lord Mansfield forty years, nearly quiet possession” turbed and the time quadruple was “more than which [allowed in common statute for tenants existing] under the then account,” was a “sufficient their action of bring .” . . . jury presume an actual ouster for the ground opinions Aston, Id.; id., (separate see also 1053-54 Atwater, Bryan v. Ashhurst, see also Js.); Willes and one tenant in common Day (“if supra, (Conn.) years, number of great . . . been in has commoners, this to his fellow any accounting without may infer jury which the . . . from proper evidence for the Camp thus stands possession”). an adverse sufficiently if time, passage proposition of ouster may provide the basis for a claim lengthy, in common who possession and adverse a tenant use, and obvious occupies property specific the for a Camp Camp, supra, v. parsonage.20 such as a See 298, 302. Cam/p proposition for the that there is The dissent relies on Doe and beyond statutory period that a cotenant is “minimum time frame” the no exclusively, more, required occupy property to establish to the without possession. accompanying Text footnote 27 of the dis ouster and adverse reject broadly principle. senting opinion. worded Doe is not a Con We this occupied case, in common who had necticut and it involved a tenant forty quadruple property period approximately years, for a almost required governing English under the statute. See time to establish ouster ex dem. Fishar v. Prosser, Rep. Moreover, although supra, 98 Eng. 1053. Doe Camp respect time, court in relied on Doe with to the element of it together property length as a considered the of time with the use possessor. Camp Camp, supra, parsonage finding in for the adverse See v. Accordingly, although agree we the dissent that this 5 Conn. 302. with beyond statutory a “minimum time frame court never has established requirement possession”; accompanying for adverse text footnote 27 of the Camp necessarily dissenting opinion; agree can be construed we do not that possession, more, prove lengthy mean that a without is sufficient to possession. ouster and adverse adopted agree a rule was in We also do not with the dissent such Day court,

Bryan Atwater, supra, (Conn.) case, citing 181. In that merely that, Doe, passing in tenant in . . . has been noted “if one common years, any accounting great a number of without to his fellow commoners, proper jury may evidence . . . from which the infer an this apply principle possession.” Id., to the 188. The court did not case, property occupied by possessor facts of that in which the the adverse house, together bam, a consisted of one acre of land with store and profits. Id., buildings he had rents and 182-83 other from which derived Moreover, passing (rendition facts). the court’s to adverse reference years”; id., 188; great regarded cannot be for “a number of concluded, category holding Camp, in the same as the which we under case, proven the facts of that that adverse had been because occupied period lengthy for a of time and used as a had been supra, parsonage. Camp Camp, 298, 302. disagree See Wetherefore majority acquies lengthy with the dissent’s claim that the has conceded that cence, more, accepted part without is an of Connecticut law on adverse open possibility that, possession, although we to the in some future remain case, might appropriate we reach that conclusion under facts. Finally, adopted Doe, if the rule articulated in even this court applicable rule would not have been to this case because the Thus, present give notice the defendant until 1997. case did not the the trial court noted that present case, In the stipulation describing of facts parties had submitted conveyance the lot their father’s following made several additional factual death.21The court also plaintiff had overcome concluding in findings met her burden of presumption proving and had in common. These find- possession by adverse a tenant asserted her plaintiff included that ings (1) exclu- intent to disseize the defendant and to maintain February 1980, 27, and title to the lot from right sive acquired interest, (2) when she had her mother’s of exclu- plaintiffs defendant was on notice of the claim parties’ “bitter rela- sive to the lot because of the right history “prior in their tionship,” as reflected and lack of communication for litigation” acrimonious twenty-five plaintiff had satisfied the years, (3) and possession because, an since other elements of all on the maintained it 1980, paid lot, she had taxes its husband, planted trees around with her together permission to use it for perimeter and the town given town fair. In rejecting the annual parking during the court further found special defenses, defendant’s forward, may adverse from that time the extent her have been requirement statutory requirement, estab- not meet the much less the it did Day Bryan Atwater, supra, (Conn.) lished years great . . . “a number of be maintained for ownership stipulated plaintiff (1) . . . an “The has piece parcel shown in the town of Somers interest in a or of land situated map plan designated ‘PROPERTY on a of lots entitled: as Lot #54 FIELD ROAD’. . . hereinafter referred PERCOSKIWESTSIDE OF OF C.A. ” acquired Billings Road,’ (2) an and her husband as ‘343 “[t]he mother, Percoski, Billings Doris from the interest in 343 Road February quitclaim 27,1980, pursuant which was recorded deed dated to a February 1980,” ... land records of the town Somers [of] acquired property from her late (3) her interest in the “Doris Percoski property husband, Constanty Percoski, when owner of the who was the sole subject 1971,” “[b]y statute, (4) in the a one-third interest he died intestate Constanty widow, Percoski, passed time Doris at the Percoski’s statute, 1971,” (5) “[b]y a one-sixth interest of his demise Constanty subject property passed Percoski’s four children: [the to each of Timothy plaintiff, Percoski and Richard Percoski.” the defendant] that there was no evidence that the had used permission the lot with the defendant’s and that there had been no occasion for the to take action to exclude the defendant from the lot because the defen- dant herself had no indication that she claimed given ownership addition, an interest. the court found that the defendant had not believed or claimed that she had 1987, family such an interest until when the discovered a cloud on the title.

firstWe conclude that the trial court’s that finding the had asserted her intent to disseize the defendant and to maintain exclusive and title to the right February lot from 27, 1980, present clearly to the was erroneous because there was no evidence in the record to it. See Caminis v. Troy, supra, 300 Conn. 306. As we stated in Newell when the issue discussing intent, implies “actual intent actual knowledge, and dispossession there can be no wrongful or wrongful exclusion, no adverse intent and adverse where holding, enjoyment one is in the honestly of that which he sup- poses his, is and has no knowledge any per- other has, son or claims to have, right participate to in possession person of it. A who has received inheritance from an estate, enjoy- his father and is in the ment of in it, adversely is one sense holding to all the world; but not in the in sense which the term is used in the law of disseisin. He had done and is doing no wrongful dispossessed any act. He has not one, and is wrongfully any not one excluding of whose or right any claim he has He knowledge. guilty is not intent. ... wrongful honestly enjoyment He is apparent of an clear he knows of no other right; right to which yield, he should and is duty conscious of no unperformed.”22 Newell v. Woodruff, supra, 30 Conn. 22 possession The dissent claims that adverse was not an issue in Newell legal principles apply and that the articulated in that case in the context ejectment unjust of an action because it would be to find cotenant hable damages resulting alleged requirement, for from an ouster without a mens rea applied and there is no indication Newell that the court would have

593 quiet seeking 17 of the title. See footnote in an action same standard passage First, opinion. disagree dissenting numerous reasons. We for part immediately follows, language is containing on intent in Newell principles apply general legal of, of the the court’s discussion Woodruff, supra, involving 30 cotenants. See Newell actions authoritative, syllabus Second, although in Newell not Conn. 497-98. states, very paragraph, the co- actual intent to exclude in its first that “[a]n shown, enjoyment property evidence must be and no of the tenant from satisfactory possession, point to admit him to is so as a refusal on this made”; id., (syllabus); profits received, thus on a demand to account for cotenancy by party possession. clearly implying knowledge of the party bringing Third, appears an action that a the dissent to misunderstand ejectment wrongful dispossession allege of his must for quiet plaintiff seeking party title same manner that a other in much the wrongful dispossession allege in an adverse action must Parizek, property. See, e.g., Simmons v. interest in the defendant’s Haven, 304, 305, (1969); Potter v. New 35 Conn. 259 A.2d 642 see also Conn. ejectment 520, (there right (1869) unless defendant is no of action Indeed, brought). there is such a close connection disseizor when action is statutory frame, possession, proof wrongful time other than the between quiet ejectment title that adverse in actions of and actions See, Kiley ejectment. e.g., in actions of has been raised as a defense (defendant Doran, (1926) defense of A. raised plaintiff ejectment possession claimed that in which adverse in action of Fourth, although dispossessed property). wrongfully the of he had been principle concerning knowledge state that the same court in Newell did not applies principle quiet title, applies that the it also did not state in actions to principle applying Fifth, only ejectment for the the rationale actions. equal possess namely, right the actions, an to that cotenants have other finding and, therefore, and intent must property for notice that the standard cotenants, protect rights is more higher of the to the be in such cases by pertaining damages cited the dissent. persuasive to than the rationale princi applied appears only to have this Sixth, that in the case since Newell Sup. 619, Appellate supra, of Boynton, Session ple, 38 Conn. v. Diamond concluded, alleging Superior breach of the covenants in an action Court requisite warranty deeds, defendants lacked the that the in certain contained defendants, adversely against possess because intent to prop they they thought the entire spouses, owned admitted that who were implies “[ajctual specifically quoted intent erty. Newell that from The court wrongful dispossession wrongful knowledge, there can be no and actual holding, is in the exclusion, one intent and adverse [when] no adverse knowledge honestly supposes his, no enjoyment is and has which he of that participate has, have, right in the person or claims that other Id., 619,quoting omitted.) quotation Newell possession (Internal marks of it.” disagree that this Woodruff, supra, with the dissent 498. We therefore v. present principle inapplicable in the context. is required cotenancy knowledge is not argues of the The dissent further upheld Newell, repeatedly subsequent because, this court in four cases knowledge. among possession without such findings cotenants adverse of opinion. dissenting cases, however, See footnote 18 of the In three of those the names of the in exclusive were the names listed public property during possession, records as the owners the time of and the court each case determined that that fact was conclusive in resolving dispute. Twarkins, supra, See Ruick v. 171 Conn. 157-58 probate provided (recording possessor’s decree notice of intent to dis- Hagopian seize); Saad, supra, (ownership 124 Conn. 257 interest was set agreement forth in . . . recorded like a “article[s] deed of land” [internal quotation omitted]); Co., marks Harrison v. International Silver 78 Conn. 417, 419, (1905) (recitation facts) (possessor predecessors 62 A. 342 and actual, exclusive, uninterrupted possession in title had and and use of land twenty-six years prior warranty for more than to action under deed and case, simple). based on claim of title in fee In the fourth the court did not decide whether there had been an ouster and ordered a new trial. See Young, 133, 139, (1916). Accordingly, Standard Co. 90 Conn. A. actually special the three cases that were decided involved circumstances recording possessors’ public in which the of the names in the records was consideration, they compared Newell, an essential and cannot be with which the court did not consider whether those circumstances existed. compelling distinction, Even without this the dissent’s citation to the foregoing proposition permits cases for the that Connecticut law adverse possession among knowledge cotenancy unper- cotenants without of the Ruick, example, suasive. In for the court concluded that the adverse possessor purchased and her husband had as tenants in com- mon, plaintiffs application probate declaring for a decree her to property, period be sole owner of the which commenced the of exclusive possession, clearly purpose “was eliminating for the and with the intent of land”; quotation (internal omitted) interest in the [the husband’s] marks Twarkins, supra, 158-59; plaintiffs Ruick v. and that the ouster clearly unmistakably of her husband “was demonstrated recording distribution, assumption of the certificate of her of exclusive property, remarriage, of the her and the construction of a new Id., principal holding house the land.” 158.The in Ruick thus was based recognition knowledge on a dispossessing that she was property. her husband when she assumed exclusive plaintiffs possession, court begun further held that the adverse which had against living husband, against heirs, her then “continued his other their daughters”; id., 160; that, posses- because the title complete long any sion was right before the children asserted to an interest they property, entry. Id., in the Accordingly, were barred from 160-61. Ruick merely held, respect children, that, they with to the because had failed to rights timely manner, acquired assert their in a had title possession. finding adverse The court made no as to the effect of the chil- ignorance disposition dren’s on the ultimate of that case. mistakenly case, The dissent also relies on Harrison. In that the issue plaintiffs, before the court claiming was whether the who were to own the defendant, land as in right bring tenants common with the had lost the partition property by an action for of the sale because of the defendant’s possession property many years; exclusive of the for see Harrison v. Inter

595 supra, v. 38 Conn. Boynton, also Diamond 498; see spouses defendant Sup. that, because (concluding 619 property, they could they that owned entire believed pos- required intent for adverse satisfy not element of interest).23 session of co-owner’s in plaintiff conceded her present case, In the acquired testimony trial that she believed that she at Co., supra, (rendition facts); and the Conn. 419 national Silver 78 regarding, consider, conclusion the defendant’s court did not or reach ownership knowledge when the ouster commenced. as to its of the language Hagopian id., Finally, although relies on in 419-22. the dissent See “ necessary wrongful owner is not a element that intent to disseize the true [a] Saad, supra, 259; regard possession”; Hagopian v. 124 Conn. we of adverse it for the reasons set forth case as an outlier and do not follow opinion. 23 of this footnote problem foregoing on the cases is that A final with the dissent’s reliance Newell, question, of whether a cotenant as the court did in none addresses may cotenancy dispossess knowledge cotenant or the other without simply legal on the basis draws its own conclusions cotenants. The dissent disagree presented. Accordingly, that adverse we with the dissent of the facts possession possession lacks in cases in which the tenant is not barred cotenancy reviewing knowledge no court has disavowed because nearly years principle was since that case articulated in Newell applied decided, reviewing it. and one court has 23 person’s immaterial he she is the lawful owner is A mistaken belief that parties possession seeking are not adverse when the in an action title possession cotenants, long have been elements of an adverse as as the other 355, 357-58, Loewenberg Wallace, See, e.g., v. 151 Conn. established. Co., 1, 5, A. (1964); 108 Conn. Ahern v. Travelers Ins. A.2d 634 Paletsky 133, 135-36, 70 (1908); DeLadson, (1928); Conn. A. 589 Searles v. because, App. Paletsky, supra, unlike tenants in 588. This is v. possess legal right common, possessor in such a case has no an adverse property, and, therefore, claim title. itself is sufficient to property. equal right possess contrast, an tenants in common have explained, Thus, previously who wishes to claim a tenant in common as we property by give clear and the other cotenant adverse must stating The Connecticut case notice of an intent to do so. unmistakable Hagopian Saad, supra, which relied on Searles 124Conn. otherwise is wrongful DeLadson, supra, 136, asserting to disseize intent “[a] possession.” necessary element of adverse owner is not a the true Searles, however, improper, Hagopian because the was court’s reliance on common, in Searles and the court in Searles were not tenants Moreover, discussing to our in that context. was not Hagop- appellate involving knowledge, cotenants has followed no other case Hagopian regard Accordingly, we law on that issue. ian's statement of the as an outlier.

full title to the lot in 1980 and did not know that she acquired had not full title until 1987. we Accordingly, conclude, as a matter of law, plaintiff that the could requisite not have had the intent to wrongfully exclude the defendant from the lot before 1987 because she believed until that time that she was its sole and exclu- sive owner.24

There also is no evidence in the record plain that the tiff had requisite dispossess intent to the defendant in 1987 when she learned that she was not the sole owner of only the lot. The evidence the record regard ing party’s either intent in 1987 was of the defendant’s intent, which consisted of undisputed evidence that the defendant had refused to relinquish ownership her interest in the property when the asked her quitclaim sign deed, a fact that the trial court when recognized it noted in its memorandum of deci sion that “the . . defendant . no gave indication that she claimed an ownership interest . . . until family when the discovered there was a cloud on the title.” (Emphasis There is no added.) countervailing evidence in the plaintiffs record of the dispos intent to sess the defendant after receiving notice of the defen dant’s intent to retain ownership of the property.25 The disagree dissent, rejects We thus with the which Newell out of hand plaintiffs and contends that the mistaken belief that she was the sole owner analysis of the lot has no effect on the other than to lower her burden of proving require intent and notice and to “the defendant to indicate that she longer quo” no intended to abide the status after the discovered in 1987 that there was a cloud on the title. unwillingness sign dissent’s contention that the defendant’s quitclaim supports, undermines, deed rather than claim is inexplicable. preceding discussion, As we indicated in the there is no evi dence in the record that the informed the defendant in 1987 that dispossess she sign intended to the defendant if the defendant refused to quitclaim parties’ deed. The evidence in the record as to the intentions in sign quitclaim deed, 1987 is that the indicating defendant refused to thus ownership was aware of the defendant’s interest property and of the defendant’s intent to retain it. intent in 1987 or at plaintiffs evidence of conduct consis time thereafter is the evidence other a tenant possess property the as right tent with her to conclude the defendant. We therefore in common with clearly on intent is errone finding that the trial court’s by the evidence. unsupported ous because it is clearly the trial court’s We also view as erroneous par- the relationship that the “bitter between finding history “prior in their of acrimonious ties,” as reflected a similar and their lack relating property, litigation” twenty-five years proof was of communication for the defendant of her intent to plaintiffs the notice to sufficient to establish claim exclusive court by a tenant in common. The adverse possession history these liti- found that “the between specifically which the court can is evidence from gants strong an exclu- readily plaintiff] claiming infer that was [the that, clearly, defen- sive to the right [the conclude, no illusion otherwise.” We was under dant] relied the evidence on which the court however, that See Caminis insufficient finding. this was Troy, supra, 300 Conn. 306. testimony that she did conceded in her right an exclusive of her intent to claim not notice give litigation had initiated to the lot until defendant conveyed lots to the acquire full title to two other attorney by mother, a fact that their he stated when emphasized during closing argument his initiated prior litigation he had referred to the that out that purpose pointing defendant “for the if even certainly Accordingly, had notice.”26 defendant conveyed that, although was trial court found that the lot We note children, including all of her her mother in 1980 and that to the defendant, was the sole that their mother and the believed finding lot, finding the defendant not amount to a owner of the does Thus, conveyance plaintiff. there are no factual to the was aware of the conveyed findings mother her interest notice in when their plaintiff. lot to the we assume that the trial court’s prior reference to the litigation parties’ as evidence of the relationship” “bitter was permissible; cf. Jewett v. Jewett, n.7, 830 A.2d 193 (2003) (“[t]here question no may that the trial court judicial take notice of the file in another case” quotation marks omitted]); [internal acrimony prior from the arising litigation could not provided have sufficient notice to the defendant because the record reveals that complaint in the first action, Larocque v. Percoski, Superior judicial Court, Tolland, district of Docket No. (Febru CV-97-0063927-S ary 18, which 2003), dispute involved the concerning the two other lots, was not filed until 1997, and the complaint in the second see action; Larocque v. O’Con nor, 90 Conn. App. 156, 876 A.2d 1229 (2005); which probate involved the dispute, was not filed until 2002. We therefore conclude that the trial court’s finding that the gave the defendant notice of her intent possess to the lot way “prior of the acrimonious litigation” clearly was erroneous because the first action was commenced approximately ten years, and the second action approximately five years, before the present of the filing complaint, thus falling short of the year fifteen statutory requirement. See General Statutes 52-575 (a). §

Furthermore, there is no evidence in the record that plaintiffs possession and use of the lot was so openly and notoriously hostile that the defendant had notice of her claim because of that conduct alone. The trial plaintiffs court found that the adverse use of the lot payment consisted of her property taxes, maintenance activities such as mowing and cleanup, the planting of trees around perimeter of the lot and her granting permission town to use the lot for parking the annual dining town fair. All of activities, these however, entirely were consistent with the actions of a tenant in common who an shares inter- without dispossess. an intent to See est as Woodruff, supra, such Newell (acts enjoying rents, occupying taxes, collecting paying “ ” they are con- ‘equivocal’ because premises entire are “possess for all and be of cotenant to right sistent with fact, all”). to account compelled willing con- activities coyrt foregoing trial determined that rely- of adverse stituted evidence after parties’ and the “prior litigation” on the acrimonious ing find that the lack of communication to that one presumption overcome words, other. In other is not adverse to the cotenant use trial court did not conclude was sufficient to lot, standing alone, plain- this court. The notice, and neither does finding the lot and did not improvements make tiff did not acquired after she any specific lot for use occupy the physically All she did to her mother 1980. it from occasionally clear brush was to mow and occupy the lot pro- hardly can be said field, from the activities required and unmistakable notice type vide the of clear exclusive claiming a tenant in common when , planted also Although the possession. sole there is no evidence lot, two sides of the along trees by the easily observed could have been that the trees adjacent to the road they were not because defendant sec- by large view a blocked from potentially and were planted were addition, In the trees tion of woods. to the contiguous in an area boundary of the lot have might that an observer property such plaintiffs for planted the trees plaintiff had concluded prop- her other separating the lot from purpose that the trial law, matter of conclude, as a erty. We thus fall and notice intent findings regarding factual court’s past cases deemed sufficient short of those acquired in common that a tenant the conclusion possession. by adverse property Ruick, In for example, we found adverse by a tenant in common not because she occupied property thirty years for more than but because she had built a property house on the and lived there together with her made daughters, improvements other property, to the including the addition of a bam and garage, collected and portions retained rents on of the property, mortgaged paid the property, taxes on the property portion and sold a property to the state. Ruick v. Twarkins, supra, 171 Conn. 154—55.Likewise, in Camp, we found possession by a tenant common who had made active property use of the as years. Camp v. Camp, supra, fifty-seven for parsonage 298, 302.

In this case, plaintiffs none conduct after when the defendant quitclaim refused to sign deed thereby asserted her ownership prop- interest in the erty, plaintiffs differed from the conduct before when she believed that she held full title to the lot. words, other conduct before 1987 was consistent with her belief that she owned the lot adversely to the world, and she did nothing after 1987 that would have given defendant notice that she intended to disseize her of her individual interest lot, such as building fence with a lock on the gate posting “No Trespassing” around signs perimeter.27 its

27The dissent’s characterization of such measures as “extreme” is itself extreme, building posting Trespassing” as is its assertion that a fence or “No signs unnecessary light parties’ around the was of the lack of past communication over the dissenting several decades. Footnote 8 of the opinion. parties’ It was because lack of communication that it was important give for the the defendant “clear and unmistakable” Twarkins, supra, notice of her intent. Ruick 171 Conn. 157. The dissent pointed single finding fact, facts, by has not to a or set of the trial court reasonably unequivocal could be construed as an action “of such an distinctly rights nature and so hostile to the of the other cotenants that the Accordingly, intention to disseize clear and [was] unmistakable.” Id. we disagree plaintiff required would not have been to demonstrate her by building fence, posting signs taking equivalent intent some other action. Woodruff, supra, (person See Newell v. 30 Conn. 498 received inheritance in one sense holds who has . . . not in the sense “adversely to all the world but in which term is used in the law of disseisin” [that] there is no wrongful intent). because present Beckwith, case is reminiscent of White 79, 80-81, plain- 25 A. 400 in which the (1892), tiff, warranty a tenant in common who held a deed to paid property all of the taxes for more property and ejectment forty years, than an action for on brought actual, open that he had held and exclusive ground acquired from 1890 and thus had 1849 to possession. full title We conclud- disagreed, predecessors that neither the nor his had ing physically occupied premises or made use of the during question. 82. We noted that no Id., buildings time property, had been erected on the no business been property, plaintiff, conducted on the and the who lived else to look employed Rhode Island and someone property, property after the had never entered onto the actually possessed Id., it. 81. Both the merely had that he held full predecessors his assumed We property by title to the virtue of his deed. Id. thus not in full determined that we could deem but, rather, and color of title possession under the claim possess premises that he continued to common recently defendant, with the who had built boathouse premises claimed in com- property on the and had plaintiff. Id., 81-82; see also Newell mon with the that trial supra, 30 Conn. 499 Woodruff, (concluding “nonsuit” in action properly granted court there was insufficient ejectment for ground plaintiffs letters to defen- evidence of ouster because property claim to or demand of specific dant made no “equivocal,” therefore, his letters were possession, and, defendant believed and because evidence that casually that she own, property, that she rented was her “ spoke paid ‘equivo- of it as hers and that she taxes was ” cal’ and, standing alone, did not indicate intent dispossess plaintiff). sum, each claim must stand or fall on its own facts. present

In the case, absolutely there is no evidence, “unequivocal” much less the “distinctly hostile” required evidence under our law; (emphasis added) Twarkins, supra, Ruick v. 157; plain the expressly tiff conveyed notified or a clear and unmistak able intent to disseize the defendant of her one-sixth years interest the lot fifteen before she instituted the present Rather, plaintiff action. See id. testified, and attorney her argued, that she gave defendant notice in 1997, only years ten plaintiff earlier. Nor did the treat undeveloped lot in such a manner that the defendant would plaintiff have believed that intended to plaintiff exclude her. Although paid taxes, occasion ally mowed the lot and allowed the town to use it for parking during fair, the town those actions are minimal in the context of an adverse claim involving cotenants, requires which clear and unmistakable notice of the intent to see disseize; id.; such as building an impassable fence or posting “No Trespassing” signs around the property’s perimeter. Accordingly, we con clude that the trial improperly court rendered judgment for the her adverse claim. The dissent declares that “the trial court made the necessary factual findings conclusion that: (1) the took lot in 1980 under color title, with the full of the knowledge defendant; neither (2) party at the time was aware of the defendant’s interest lot; (3) twenty-seven years over the ensuing plaintiff acted as if she were the exclusive owner of the lot, without interference from the defendant; and other (4) unique circumstances of case, tandem with the more credible testimony, made clear that the defendant was aware that the intended to hold the lot as the exclusive owner.” Footnote 13 opinion. In other the dissent dissenting words, that appears findings to believe the trial court’s factual support conclusion of constructive notice.28 The dis- sent, however, the fact that the court ignores reviewing required is to determine whether the trial court’s find- supported by as to intent and notice are sufficient ings evidence, present and that the trial court in the case prior relied on the and not on the factors litigation, cited dissent, determining that the the defendant notice. given Moreover, previously as discussed, the dissent disregards established Connecti- cut law that the cotenant have of the knowledge must cotenancy proper in order to see Newell give notice; Woodruff, supra, 30 Conn. the defendant’s 498-99; express rejection plaintiffs request of the to sign quitclaim deed, represented which an assertion of her possess property plain- own and the right attorney’s tiffs concession and her that she argument by way gave prior litiga- notice to defendant of the tion, which commenced in 1997. plaintiffs

The dissent attacks the relevance of the that the trial court made no concession, claiming finding 28 find it that the dissent the defendant should have We ironic believes notice” of the been aware of the so-called evidence of “constructive steadfastly dispossess recognize that intent to the defendant but refuses to records, descent, the certificate of devise or which was recorded in the land give was not the sole owner did not constructive notice she Bank, Kelepecz, 692, 701, property. N.A. v. of the See PNC (2008) (“the purpose give constructive A.2d 663 of the land records Kopylec therein”); world instruments recorded v. North notice to the App. 146, n.18, (“It Branford, (2011) Conn. 23 A.3d 61 is well conveyance [e]very person interest . . . that who takes a of an established conclusively presumed facts which are in real estate is to know those apparent upon concerning the land records the chain title conveyance implies ground .... law notice on the described in the conclusively person purchase presumed will not an interest that it is piece examining an without the condition of the record. Such in a of land prudence.” quotation required marks act would be common [Internal omitted.]). give did not notice of her intent to dispossess the defendant until that it is not the finding, role of this court to make such a that there is nothing plaintiffs testimony indicating that she provided any prior “never notice” to the defendant plaintiffs testimony 1997and that the does not give the conclusion that she did not until notice prior or that none of her actions to that time afforded the defendant constructive notice. Footnote 13 of the opinion. dissenting emphatically disagree We with each implicit of these claims. First, in the trial court’s refer- “prior litigation” ence to the acrimonious was the date litigation commenced. The fact that the court did expressly not refer to the date is irrelevant. Insofar as nothing the dissent claims that there is in the record plaintiff indicating provided any that the “never notice” prior neglects to the defendant to 1997, the dissent convincing to consider that there must be clear and plaintiff provide evidence that the did notice and that dispositive. the lack of such evidence in the record is plaintiffs response question As for the to the of “how” possession, she told the defendant of her adverse her response unambiguous. Although was the dissent con- question merely required plaintiff tends that the the to explain gave “how,” rather than “when,” she notice to question the defendant, either would have elicited the response same because the event to which referred, she namely, prior litigation, clearly commenced at a plaintiffs attorney spe- Moreover, discemable time. cifically argued, testimony, on the basis of her that, correspondence attorneys because of between for the prior litigation, at the time it would be “disingenuous” of the defendant to claim that she did plaintiff dispossess not know that the intended to her. Finally, although testified as to how she acquired made use of the lot after she it in 1980,she give never testified that her conduct was intended to that even knew notice to the defendant or the defendant Finally, was all of the using that she lot. were with the activities

activities before 1997 consistent who shares an interest of a tenant common dispossess property wrongfully without an intent Indeed, the other cotenant. the trial court declined solely on given conclude that the notice the basis of evidence her use of the regarding before 1997. reasonable conclu- Accordingly, testimony can the plaintiffs sion that be drawn from and did gave is she notice to defendant prior not time. give notice The dissent also contends that the trial court’s judg- principles29 ment should be on the basis (1) affirmed adopted notice that have not been in Con- concerning necticut, theories that the did not raise (2) respect at trial and that the did not consider. With court that a former, principle to the the dissent relies on the may proper cotenant be deemed to have notice given is taken from dispossess of an intent to when the land the outset under an exclusive claim of as when right, cotenancy exists, possessor ignorant 29 frequently departs precedent and The dissent all too from Connecticut approximately fifty years ago; repeatedly published relies on an annotation Allen, annot., Cotenants,” W. Between 82 A.L.R.2d see “Adverse Possession jurisdictions (1962); which in turn relies on cases from other decided early Thus, centuries. to the extent that the the nineteenth twentieth any majority law, a rule rule or trend in the case such annotation refers developments law the reflect more current over or trend does not only fiftyyears. addition, a handful of citations last the annotation contains repre law, significant light of the dissent’s to Connecticut which we find “1100 based on a review of more than sentation that the annotation is dissenting accompanying . . . .” Text footnote 9 of the American cases apply principles opinion. Accordingly, have this court the dissent would relating unfamiliar in this to notice that in some instances are not law, jurisdiction Connecticut such as but are in conflict with established dispossess requires requirement in Newellthat actual intent to the articulated equal possession. knowledge right an that the other cotenant has actual Woodruff, supra, Conn. 498-99. Newell “ ” that, facts, under such ‘much less evidence’ is needed possession. to establish previously adverse As dis- principle the dissent also relies on the cussed, beyond statutory there is “no minimum time frame” period required occupy property that a cotenant is exclusively, more, without to establish notice and possession. Text footnote 27 of accompanying opinion; opinion. see footnote 20 of dissenting this finally principle The dissent relies on the that the law permits ouster, “the trier of fact find in the absence [to] any notification, affirmative act of under other circumstances clear and indicating convincing evi- dence that the cotenant in intended to hold the property exclusively and the cotenants pos- out of session had actual or constructive notice thereof.”30 None of principles these has been recognized Con- necticut, and the dissent’s as to notice in reasoning cases of ignorance, particular, is in direct conflict with this court’s clear statement of the law in Newell. opinion. See footnote of this Similarly, the dissent concludes that the judgment should be affirmed on the basis of theories that plaintiff did not advocate and that the trial court did not consider. these Among theories and conclusions are: (1) plaintiffs mistaken belief that she alone acquired the lot from her mother in 1980, together with other acts consistent with such as insuring property, paying taxes, park- allowing ing the annual town during fair, and otherwise acting as if she was the owner, sole afforded the defendant sufficient notice adverse and exclusive that, once the principle recognized, arguable, Even if this has been which is it not applicable light plaintiff’s gave here in concession that she notice to through attorneys prior litigation the defendant the court and her when the commenced in 1997.

discovered that there was a on title, cloud the “the onus lay the on defendant to indicate that she no longer by quo,” intended to abide the status which the defen- do; dant failed to and notice and (2) gave acquired possession simply by property occupying exclusively twenty-seven years, for beginning acquired when she her mother’s interest, until present when she litigation. commenced In reaching conclusions, these the dissent fails to acknowledge that this court is limited to reviewing clearly whether the trial court’s are erroneous findings and whether, on the basis of those the court findings, properly the plaintiff acquired concluded that the lot possession. adverse Nevertheless, dissent’s con- clusions under each of the are foregoing theories defeated concession that not she did notice to the defendant if give until 1997. Even this were not case, however, plead did not or brief the relies, theories on which the dissent and the trial court made no and reached no conclu- findings in support sions of those theories. this Accordingly, court should not address the issue of a cotenant’s responsibility ownership to reassert after the other cotenant takes under the mistaken belief that she is the sole owner of the and the issue of whether exclusive for more than the stat- utory period, more, prove without is sufficient analysis legal because the dissent’s inapplicable inappropriate of the circum- light stances in this case. is reversed and the case is remanded judgment on judgment

with direction to render for the defendant for further plaintiffs complaint proceedings partition the defendant’s counterclaim sale or seeking of the lot. and VERTE- opinion NORCOTT,

In this McLACHLAN FEUILLE, Js., concurred.

ROGERS, J., EVELEIGH, C. with whom PALMER and join, respectfully Although I dissent. Js., dissenting. majority properly reviews the trial court’s factual find- plaintiff, O’Connor,1 that the named Theresa P. satis- ing adverse possession according fied each element of sufficiency standard, of the evidence I believe the court the majority degree fails to afford the trial routinely sufficiency that this deference court affords majori- I cannot with the challenges. Specifically, agree ty’s “absolutely that the record contains no conclusion parcel evidence” that the intended to hold a prior 1997, of land as the exclusive owner (lot) Dorothy defendant, Larocque, that the was on notice thereof, plaintiffs express testimony to that given judgment effect. I would affirm the Accordingly, trial court.

I begin noting that, posses were this an adverse cotenants, sion case not it is clear that the involving standard for adverse would be satisfied. Even aside the various uses which the setting husband, O’Connor, put and her John J. have the lot past trees, over the several decades—planting mowing lawn, brush, it for fact clearing leasing parking—the plaintiff paid property taxes, insured the listed, husband, and was with her as the sole “ ” taxpayer provides ‘powerful of record evidence’ of possession. Parker, 529, 531, Wren 57 Conn. 18 A. 790 (1889); Morrill, App. 652, Porter 108 Conn. 666-67, denied, 949 A.2d cert. trial, party John J. O’Connor also was at but is not a to this

appeal. convenience, plaintiff. P. For we refer to Theresa O’Connor as the A.2d (2008).2 Accordingly, sole issue raised appeal this is the extent to which the fact that the impacts possession analysis. axe cotenants the adverse first the standard of I with Considering review, agree majority possession presents that adverse a mixed question entirely of law and fact. it Because is not clear what degree majority of deference the would afford to the trial court’s I review what I findings,3 however, surprising court, prior present It is not that the trial in a case between the parties virtually involving pertaining lots, identical facts to two additional present adversely possessed concluded that the defendant those two lots Larocque Percoski, by present plaintiff. Superior Court, owned the See judicial Rockville, (Febru district of Tolland at Docket No. CV-97-0063927-S ary 18, majority explains 2003). why, view, The in its the outcome of the prior present dispute parties. case is not material to the between the See majority opinion. Although agree outcome footnote 6 of the I that the of prior unimportant present purposes, pleadings the case is for the offered positions present highly and the taken the in defendant that action are Indeed, although present relevant here. it is true that the trial court in the case rejected plaintiffs “equitable” the claim—that the should succeed merely successfully her adverse action because the defendant adversely possessed against prior expressly her in the action—the court open possibility aspects previous litigation among left that “certain of the may bearing present suit, have a on the resolution of the such estoppel,judicial evidentiary by way of collateral admissions or admis as (Emphasis added.) dissenting opinion, sions . . . .” As I discuss in this it precisely properly prior capacity that on the is the trial court relied litigation finding present defendant was on notice that the adversely holding was the lot to her. majority, example, clearly for concedes that under the erroneous “duty review, review, appellate standard of it is the an tribunal to [of] retry, quotation proceedings (Internal of the trial marks not to court.” opinion, however, majority omitted.) contends that Elsewhere province is the of the . . . court ... to decide as a matter of law “[i]t requirements posses . . . whether the facts found fulfill the of [adverse] sion,” “[a]pplication pertinent legal to the trial and that standard subject plenary findings review.” What is not clear court’s factual to our majority particular a element is whether the considers the conclusion that given case such as notice or intent is satisfied in a alternately, subject appellate review, or, finding, to be a factual to deferential conclusion, subject explain legal 5 of to de novo review. As I footnote authority supports opinion, overwhelming weight dissenting this majority that, position. course, agree even under a former Of I do with the review, if: reversal is warranted as a matter of law deferential standard of law. governing First,

believe to be the well established majority I with the that the definition of adverse agree possession, legal governing finding and the standards are law which possession, questions of adverse over plenary proper court review. It is the this exercises province appellate court, then, identify of an possession,4 constituent elements of adverse to define elements, impose any those and to rules or restrictions as to the circumstances under which those elements may I Second, agree majority be satisfied. with the evidentiary prov- of basic facts is the finding proper fact, ince of the trier of and that such are findings appellate reviewable an court for clear error. Third, particular importance present and of for the I case, believe it is well settled that the trier of fact is

also tasked with applying evidentiary those basic facts to the elements of adverse possession, and with finding whether each of those elements is satisfied.5 Because (1) findings; (2) there is no evidence to the trial court’s factual slight evidence is so that no reasonable fact finder could find the elements possession by convincing evidence; (3) of adverse satisfied clear and or satisfy findings legal factual fail to the established standards for adverse possession. That is not the case here. 4 possession lie, possession “actual, [open] For adverse must be notorious, exclusive, statutory throughout continuous and hostile” period. Co., 1, 4-5, (1928); Ahern v. Travelers Ins. 108 Conn. 142A. 400 see 95-96, addition, (2002). Am. § also 3 Jur. 2d Adverse Possession 10 In possession cotenants, necessary case of adverse between it is to demonstrate possession adversely that the cotenant in intended to hold to the ousted cotenant, and that the latter was on actual or constructive notice of that intent. 5 repeatedly This court has stated that whether the constituent elements possession ultimately question fact, subject of adverse are satisfied is a of See, e.g., Troy, 297, 306, to deferential review. Caminis v. 300 Conn. 12 (2011) (“our scope [bjecause A.3d 984 . . . review is limited possession question quotation is a of fact for the trier” marks [internal omitted]); Quadrato, 398, 404, (1955) v. Goldman 142 Conn. 114 A.2d 687 (“Whether possession question is adverse in character a . is of fact... Since possession court found all the essential elements of an adverse [trial] judgment.” Spencer omitted.]); . . . the court was correct in its [Citation Merwin, 330, 336, possession (1907) (“[a]dverse v. 80 Conn. 68 A. 370 is a question fact, by by and when found the trial court will not be reviewed

611 party possess seeking adversely a coten- against facts, appears this court as a conclusion from evidential unless it that these facts, them, necessarily legally logically or some of are inconsistent with quotation Beckwith, omitted]); that conclusion” marks v.White [internal 79, 82, (1892) (“[i]t Conn. 25 A. 400 is true that trial has found [the court] [evidentiary] which, they certain . facts . . from the existence of if had trier, any entry satisfied the mind of the it was for him to find whether possession deeds, so, been made or taken and held under the and if whether actual, open, hostile”); annot., such was exclusive and see also 82A.L.R.2d301, (1962) (“questions given § 86 whether in a case essential [the present elements of adverse between are are ordi cotenants] narily jury, only issues of fact for the and can become matters of law when evidence, evidence, conclusive”). or want of particular, emphasized we have that the determination of whether the present elements of adverse at issue in the case—notice and Twarkins, intent—are satisfied is for the trier of fact. See v. Ruick 149, 161, (1976) (“[i]n analysis, Conn. 367 A.2d 1380 the final whether [the plaintiffs] possession question is adverse her is a of fact for [to cotenants] trier”); Lengyel Peregrin, 285, 288, 132 (1926) (“ouster 104Conn. A. 459 question fact”); Young, 133, 137, ... is a Standard Co. v. 90 Conn. (1916) (“The only question A. 932 contested of fact in the case was . . . whether there had been an ouster of the defendants. This was [cotenant] proper question jury.”); Bryan Atwater, Day (Conn.) for the (1811) (whetherpossession “proper subject was adverse to cotenant deemed jury,” possible, for the consideration of the unless law one result is purports possess adversely against lessor). as where life tenant general These statements are consistent with our rule intent and questions subject appellate See, e.g., notice are of fact to deferential review. Hedge, 621, 658-59, (2010) (“[i]t State v. 297 Conn. 1 A.3d 1051 is well question purely question established that the of intent is of fact . . . the determination of which should stand unless the conclusion drawn quotation omitted]); trier is an unreasonable one” marks State v. [internal Hinton, 301, 323, (1993) (“the 630 A.2d 593 trial court’s decision question discriminatory represents finding on the ultimate intent a great omitted; quotation fact . . . entitled to deference” internal [citation omitted]); Assn., Inc., marks Morin v. Bell Court Condominium 223 Conn. 323, 325, (1992) (reviewing finding 612 A.2d 1197 of constructive notice according sufficiency Haven, standard); of evidence Lukas v. New 184 205, 208, (1981) (“[wjhether Conn. 439 A.2d 949 sustained his proof presented burden of on the of . . . constructive notice . . . [issue] question] upon evidence”); of fact for the trier to determine all the Baker [a Ives, 295, 307, (1972) (“constructive v. 162 Conn. 294 A.2d 290 notice is a question jury [only] of fact for the and unless . . . one conclusion could found, trier”). be its determination should be left to the None of the adverse possession by majority contrary, majority cases cited is to the and the reviewing differently findings offers no rationale for of notice and intent and convinc those elements clear ant must establish Esposito, Ltd. v. Associates, evidence; Wildwood ing the trier’s finding A.2d 1241 36, 42, 557 (1989); 211 Conn. is satisfied of adverse that an element stan sufficiency of the evidence under reviewable Troy, 297, 306, 12 A.3d dard. See Caminis v. 300 Conn. standard of review. This is also a deferential 984 (2011). to sit as the seventh the function of this court is not “[I]t sufficiency of the evidence juror when we review the most favor rather, determine, hght . . . we must totality of the verdict, whether sustaining able to therefrom, inferences evidence, including reasonable making .... this supports the verdict [trier’s] the most given evidence must be determination, [t]he verdict of favorable construction reasonably words, ... In other capable. which it is [i]f conclusion, reasonably have reached its could [trier] if this court with stand, disagrees the verdict must even Hospital, 279 Conn. it.” Carrano v. Yale-New Haven see also Considine A.2d 149 622, 645-46, (2006); Waterbury, 830, 858, (2006) 905 A.2d 70 “ ” must be met before standard that (noting ‘rigorous’ for insufficient may court set aside verdict reviewing v. Woodlake Master Lakeview Associates evidence); Assn., Inc., Condominium 769, 778, Conn. 687 A.2d circumstances (“[o]nly clearest (1997) reasonably be conclusion found could not where the be disturbed” reached will the trier’s determination this Accordingly, marks quotation omitted]). [internal findings trial court’s explained court has “[a] case, supported if sufficient an adverse whole], and the record as a pleadings evidence [in .” (Internal quo court . . . binding reviewing are Troy, supra, 306; Caminis see omitted.) tation marks 219-20, (2003) Adverse Possession 292§ also C.J.S. every juris- than in other of this court’s cases area prudence. prove burden (notwithstanding by question clear and convincing evidence, of whether elements are satisfied is one for trier of fact where even slight evidence exists).6

I believe that the record here contained sufficient evidence for the trier of fact to have found that the majority Minerals, Inc., To the extent that the relies on v. Bristol Tilcon (2007), case, 284 Conn. 931 A.2d 237 an inverse condemnation for the proposition plenary review of the trial court’s factual conclusions is present case, misplaced. Bristol, warranted its reliance is we repeated, occasions, as we have on numerous other that a “trial court’s they legally logically conclusions must stand unless are or inconsistent with they application the facts found or unless involve the of some erroneous (Emphasis added; quotation rule of law material to the case.” internal marks omitted.) Id., by very language deferential, 83. This its nature in that it requires reviewing uphold unless, court to a trial court’s conclusions as law, they Indeed, a matter of could not flow from the factual record. sixty quoted language prior Bristol, more than cases which we used the equated plenary we never once it with a or de novo standard of review. To contrary, frequently language appears reviewing in the context of sufficiency conclusions, of a trial court’s it where is clear that factual See, e.g., AFSCME, our standard of review is deferential. Council Local Dept. Health, 617, 622-23, (2005) Public Conn. 866 A.2d 582 question (“Waiver [Wjhere is a of fact. . . . the factual basis of the court’s challenged decision is we must determine whether the facts set out in the supported by whether, light memorandum of decision are the evidence or pleadings record, clearly of the evidence and the in the whole are those facts Therefore, erroneous. . . . the trial court’s conclusions must stand unless they legally logically they are or inconsistent with the facts found or unless application involve the of some rule law erroneous of material to the case.” omitted; quotation omitted.]); Newbury internal marks Commons [Citations Partnership Stamford, 92, 99-100, (1993) Ltd. 226 Conn. 626 A.2d 1292 presented (“The conflicting testimony trial court was with as to the value property, testimony report plaintiffs of the and concluded that the expert was the most credible. In assessment case which trial conflicting appraisal methods, proper court is confronted with it is a function give expert of the court to credence to one over the other. . . . The conclu they legally logically sions reached the trial court must stand unless are or they application inconsistent with the facts found or unless involve the adop some law. ... erroneous rule of We will not disturb the trial court’s property, therefore, appraisal tion of the valuation of the unless the legally omitted; quotation omitted.]); was invalid.” internal marks [Citations Meskill, 615, 639, (1977) (“A finding Horton v. 376 A.2d 359 is to uphold judgment. Every presumption be read to reasonable will be indulged in to it. . . . The conclusions reached the trial court they legally logically must stand unless are inconsistent with the facts

614 and I further believe defendant, ousted7 the finding. that factual precluded in the law nothing that that the trial court’s deci- I would conclude Accordingly, clearly not erroneous. sion was principles specific legal governing I now turn to the cotenants, and the various between possession may proven. which be through means such majority any party with seeking I agree by must demonstrate clear establish adverse her use of the land was evidence that convincing notorious, exclusive, continuous “actual, [open] and statutory period. Ahern v. throughout and hostile” Co., Travelers Ins. 1, 4-5, (1928). 108 Conn. 142 A. 400 context, the would- agree that, I further in the cotenant possessor bears the additional burden of be adverse only that she intended to hold the land proving not they application law involve the of some erroneous rule of found or unless omitted; quotation omitted.]); internal marks material to the case.” [Citations Transportation, 439, 440-41, Esposito 356 v. Commissioner of (“The (1974) has . . . made a wholesale attack on the A.2d 175 defendant rarely finding produces flnding[s] an attack on a referee’s Such [of fact]. retry beneficial results and in effect the defendant seeks to have this court by the the issues. This is not our function. . . . The conclusions reached they legally logically unless are or inconsistent with the trier must stand they application unless involve the of some erroneous rule facts found or omitted.]); England to the case.” Southern New of law material [Citation State, 644, 651-52, 345 (1974) (“These Contracting v. Conn. A.2d 550 Co. 165 They by finding, as corrected. . . . must conclusions are to be tested they legally logically inconsistent with the facts found stand unless are or they application law material unless involve the of some erroneous rule of policies pointed particular . . . of these out with to the case. The wisdom extremely where the factual framework is force a case such as this pointed out, sharp complex where, trial there were conflicts as the court omitted; quotation omitted.]). marks in the evidence.” internal [Citations engages Accordingly, suggested inBristol that this court to the extent that we sufficiency plenary a trial review of the of the evidence in a weight conclusions, was inconsistent with the factual that statement court’s of our case law. 7 “ouster,” Although in their use of the term at the cases are inconsistent owner, physical rightful equating and at other it with a eviction of times dissenting general, equating it with adverse this times merely opinion intent to refer to the additional elements of I use the term possession among necessary cotenants. to establish adverse and notice adversely, but also that the cotenant was on notice of this intent. Ruick Twarkins, 149, 158-59, Conn. 367 A.2d 1380 These (1976). dual elements of intent and notice, may collectively which “ouster,” be termed are necessary in light assumption default action a cotenant performed as to common land is with the consent and Id., for the benefit of all cotenants. 157; Bryan Atwater, Day (Conn.) (1811); annot., 82 A.L.R.2d 23-24, Lastly, I share the (1962). § majority’s view express that there is no notification requirement; notice to may the ousted cotenant be either actual or annot., constructive. See generally, supra, 82 A.L.R.2d 50.§

I emphasize, would however, that of the “[n]otice hostility possession of the resulting from acts or con- duct possessor may appear many in so [a cotenant] ways that judges and text writers have not undertaken an Id., p. enumeration.” 235. The requirement is that the find, by trier of fact clear and convincing evi- dence, possessory cotenant intended to hold the common exclusively, land and that the ousted coten- ant was on notice thereof. Id. Although majority, relying law, appears some dicta in the case to believe adequate that there can be notice of a cotenant’s intent dispossess only express when there is either an notifi- closely cation or akin to something it, thorough review of the requirement.8 cases reveals that there is no such 8Although majority disputes requires something the contention that it closely express notice, examples akin to it offers of how the exclusively might have notified the defendant of her intent to hold the lot are, fact, measures, enclosing small, undeveloped in extreme such as this impassable surrounding trespassing rural lot within an barrier and it with no signs. majority analysis by declaring also concludes its is “there absolutely plaintiff expressly conveyed no evidence . . . that the notified (Emphasis a clear and intent to . . . .” unmistakable disseize defendant added.) It is clear from the authorities cited in this that such extreme dissent necessary, especially this, measures are not in a case such as where there virtually past has been no communication between over the decades, during three which time the defendant never once entered onto any way. upkeep the lot or contributed to its

616 of the legal annotation authoritative, page 300 In his cotenants, possession among for adverse requirements cases than 1100 American reviewed more W. W. Allen notwithstanding that, concluded subject;9 id.; on the in this view contrary, the dominant any dicta to the acts of exclusive or notorious country “is that outward majority appears noting that, to believe that while the also bears It step give her her cotenant notice of some affirmative claimant must take majority very exclusively, make authorities cited intent to hold required giving unnecessary; is that the ousted all that is notice clear See, adversity possession. e.g., claimant’s cotenant have notice of the proof Twarkins, supra, (there “an also must be Ruick v. 171 Conn. 158 notoriously openly hostile that the so ouster and exclusive [emphasis added]). notice of the adverse claim” have will cotenant Against Orr, comment, Tenants Common E. “Adverse Possession 776, (citing Tennessee,” (1970) n.84 Allen’s annotation 37 Tenn. L. Rev. cases); recognizing also Allen’s review of 1100 see A.L.R.2d 5 and in 82 annotation”); Niewoehner, 1971) (“excellent (Iowa Shives v. 191 N.W.2d Wengel, App. 86, 98, 714 N.W.2d 371(2006) (“[t]he Wengel Mich. v. thoroughly cotenants is discussed as between law of adverse Travis, App. 447, 5”); McCann 63 N.C. 82 A.L.R.2d annotation in] [Allen’s unique 451, 305 (1983) (referring readers to Allen’s annotation for S.E.2d cotenants); Nelson governing between of rules set Christianson, (praising (N.D. 1984) work as Allen’s 343 N.W.2d 378 January, Caywood 49, (Okla. 1969) annotation”); v. 455 P.2d 51 “exhaustive Mining Surprize Co., v. Sunshine annotation); 15 Wn. Silver (“exhaustive” J., dissenting) App. n.11, (1976) (McInturff, (“extensive 1,32 C. 547 P.2d 1240 Proceedings Property annotation”); Legg, Law Section “Real Actions J. 1485,1516 (1996) (“broad Busted,” L. Rev. n. 198 59 Alb. 541: The Mind-Buster credit, possession co-tenants”). To its the trial adverse between discussion of concluding in satisfied court relied on Allen’s annotation majority, possession against legal requirements for adverse a cotenant. legal by contrast, inexplicably that courts and scholars dismisses a treatise majority topic. recognize While the as the definitive source on continue to fifty years ago,” rejects “published having . . . in for been Allen’s work recently updated and indicates no shift the annotation has been fact dispossess majority position intent that constructive notice of the myriad ways, may given and is to be determined the trier be in cotenant annot., supra, unique of each case. See fact based on the circumstances 40, 52, 53, updated (2001) §§ Case 60 as the Later Service 82 A.L.R.2d majority any prevailing rule offer evidence that and 62. Nor does years of common law has sud over the course of hundreds established majority’s denly years. changed contention that Allen’s in recent As to the jurisdiction,” compendium in this a statement of the law “unfamiliar reflects every theory emphasize which I cite of constructive notice for I would implicitly, by embraced, expressly or either Allen’s annotation has been appellate in Connecticut. courts . . . ownership any are not essential in in instance which the hostile possession character of the is other- distinctly wise and the fact manifested thereof brought possessor’s home to the Id., p. cotenants.” 24. Allen explains further in the annotation that “the conclusion to be drawn from a whole, the cases as and which in reason as is that well, where the [follows] in adverse, fact hostile and it is if law is . . . manner its adverse character plainly possessor’s manifested to the cotenants.” (Emphasis Id., p. 69.10 added.)

Bearing analysis, out Allen’s this court has found— or affirmed a trial court finding of—adverse every cotenancy almost case in which we have con Ruick v. question. Twarkins, See, sidered e.g., 161; Hagopian Saad, 124 Conn. 256, supra, 171 Conn. v. Lucas v. A. Crofoot, 259, 199 (1938); 95 Conn. Bragaw, Goodwin 626, 112 A. 165 v. (1921); 87 Conn. Harrison v. International 31, 39-40, 86 A. 668 (1913); Co., Silver 62 A. 342 417, 422, In two (1905). cotenancy additional cases, we made clear that a finding of adverse would have been legally permissi Young, ble. See Standard Co. v. 90 Conn. 133, 135, A. 138-39, 96 on other (1916) (reversing grounds); Bryan Atwater, supra, Day (Conn.) (trial 192-93 improperly court jury that, by law, instructed defendant adversely cotenant possessed property, could not have that “the verdict to have been opining ought for Williams, see also Ricard defendant”); 20 U.S. company. good Taft, writing Allen is Later Chief Justice for the United Appeals Circuit, States Court of for the Sixth reached the identical conclusion McClaskey, (6th 1895): in Elder v. 70 F. Cir. “There are 542-43 some language indicating that, authorities which is used before a tenant adversely cotenants, prove common can hold to his he must that his coten- possession, knowledge ants had actual assume of his intention to exclusive necessary language will but it be found that the was not to the decision of By overwhelming weight the cases under consideration. ... of author ity necessary (Citation omitted.) .. . . . . .” actual notice is not L. 398 (1822) (applying 5 Ed. 59, 116, 119-20,

(7 Wheat.) have years in the 200 that fact, In law).11 Connecticut of adverse first heard a case this court passed since repre case cotenants, present possession among we my in which instance, knowledge, the first sents finding merits a trial court’s reversed on the have ever party possession.12 in favor of while history, noting of that Over the course unique of the on the basis ouster must be assessed Williams, supra, Ricard case; of each circumstances Crofoot, supra, 623-24; 95 Conn. Lucas 106; 20 U.S. Connecticut 40; 82 A.L.R.2d annot., supra, § also see methods specific a number of recognized have courts to establish notice sufficient providing constructive example, permits the law of a cotenant. For the ouster party in ouster when: (1) trier of fact to find under an exclusive takes and holds the land cotenant; (2) rather than as an avowed right, claim of acquiesces period for a long ousted cotenant property, of the possessor’s exclusive use time in the expect of a might as one party acting without either otherwise indicate the circumstances cotenant; (3) notice were on constructive that the ousted cotenants adversely to them. intent to hold possessor’s evi- the record contains sufficient present case, majority present Perhaps unsurprisingly, concludes that the case is 79, 83, Beckwith, (1892), 25 A. 300 the lone akin to White v. more my against case, knowledge, in which this court has found cotenant adversely possess against purporting in common. It is notewor his tenants thy, however, find that the could this court did not that Beckwith property. law, adversely possessed not, have the contested as a matter of Rather, the trial court could have found adverse this court clarified that case, to the trier’s conclusion the facts of that but we deferred Id., plaintiffs possession was not in fact adverse to the defendants. Here, otherwise, I would likewise defer. the trial court found 82-83. majority’s “only five the nine cases decided statement [of Supreme in favor States have been decided this court or the United Court] misleading, given the fact that all nine cases the claimant” is somewhat legally per finding have been that a of adverse would made clear missible.

dence for the trial court to have found that all three apply.13 theories 13 majority posits (1) that these theories of constructive notice: have adopted by courts; (2) by

not been Connecticut were neither raised at trial plaintiff by court; precluded by the (3) nor considered the trial and are the plaintiffs alleged admission that the defendant was not on notice of her exclusively simply intent to hold the lot until 1997.These claims are untrue. First, theory embraced, implicitly, each has been at least under Connecti- Indeed, theories, second, cut law. of the three lengthy the which focuses on acquiescence by cotenant, by majority the ousted is conceded the to be an accepted part law, theory, of Connecticut and the third which looks to the totality circumstances, really theory of the merely is not a distinct at all but unexceptional proposition may the that the trier of fact find that a cotenant unique reasonably is on notice wherever the circumstances of the case support majority Although may that conclusion. the and I differ as to what convincing evidence, majority, circumstances would constitute clear and the having possession possible, conceded that constructive notice of adverse hardly principle can disclaim the that such notice is to be ascertained the trier of fact on the basis of the circumstances of the case. Second, plaintiffs attorney testimony support did elicit of these Indeed, plaintiff emphasized theories at trial. herself that her claim of long history exclusive was based not on a of sole ownership, and acts of defendant, without contribution from the but also acquired on the fact that all believed that she had full title to the lot in 1980. addition, necessary findings support the trial court made the factual (1) title, conclusion that: took the lot in 1980 under color of knowledge defendant; (2) party with the full of the neither at the time was lot; (3) ensuing twenty- aware of the defendant’s interest in the over the years seven acted ifas she were the exclusive owner of the lot, defendant; (4) unique without interference from the other circum- case, testimony, stances of the in tandem with the more credible made clear that the defendant was aware that the intended to hold the lot as the exclusive owner. It is true that the trial court’s ultimate general terms, alluding conclusions are couched in to the “bitter relation- ship” “history parties, “unique case, between” the and the facts” of the pin findings precise and that it did not on its labels I have used in this dissenting opinion. might preferable It have been for the court to have cited herein, all of the case law referenced or to have connected the dots more directly evidentiary findings between its and its ultimate conclusion that satisfied, the elements of adverse were but there is no such requirement. Rather, sufficiency support where the of the evidence to challenged appeal, reviewing “give verdict is court must the evidence the most favorable reasonable construction in . . . .” verdict quotation (Internal omitted.) Kimberly-Clark Corp. Dubno, marks 137, 153-54, (1987). Moreover, Conn. 527 A.2d 679 where a memorandum ambiguous, precluded affirming of decision is this court is not from judgment expressly on a basis not cited the trial court. See Skuzinski Fuels, Inc., 694, 703, (1997); v. Bouchard 694 A.2d 788 Wenzelv. Here, 676-77, (1965). Danbury, 675, it strains credu- 211A.2d 683 152 Conn. majority that, lity suggest inferences are when all reasonable for the to literally support verdict, the was no evidence to in favor of the there drawn plaintiff holding the was the defendant knew that determination that court’s adversely to her. the lot heavily plaintiff majority finding Lastly, that the herself relies on its the dispossess give intent to the defen notice of her that she did not conceded finding, Initially, make this that the trial court did not until 1997. I note dant R., 539, 293 Conn. 559 our role to do so. In re Jorden and that it is not majority allegedly Moreover, n.17, (2009). discerns this the 979 A.2d that, solely dispositive asked on cross-exami from the fact when concession adversely pos was told the defendant that she nation how she could have terms, plaintiff replied: they speaking sessing the when were not on the lot lawyers. question “Through of the other two lots and When ... the court testimony literally nothing up brought up.” in this ... it was There is came plaintiff provided support to never notice the the view that the to plaintiff prior 1997, the not tell the defendant to or that not did defendant prior 1997, her actions until but that none of of her adverse intentions question notice thereof. The that time afforded her sister even constructive you plaintiff “when did “when did first tell her?” even to the was not added.) you you (Emphasis . . . ?” There was “how did tell her tell her?” It question, reply indication, given that the elicited or the context of the is no plaintiff sought speak first to the issue of when the offered was intended to adversity Moreover, notify holdings. even if of her the defendant actively plaintiff sought give the defendant time that the 1997were the first plaintiff gave but, notice, question legal notice is not when the the relevant dissenting rather, 8 of this the defendant had notice. See footnote when something opinion. told the defendant The fact that the might says absolutely nothing notice the defendant about what constructive by prior the have had to that time. To construe this one statement satisfy of adverse that she failed to the elements as a broad concession testimony contrary, explicit possession, runs over her to the and to credit it “give long-standing commitment to the evidence the afoul of this court’s . . . .” of the verdict most favorable reasonable construction Resources, Wall, quotation omitted.) (Internal Inc. v. marks Assn. (2010). A.3d parties’ “prior Similarly, the acrimonious from one brief reference to decision, majority litigation” concludes that the in the memorandum of the prior primary litigation as the basis for its conclusion trial court relied on the defendant, adversely its decision held the lot to the that the majority clearly gives no credence to the therefore erroneous. The was trial court in its memorandum of various other factors discussed the history parties; articulation, including: the between the their decision and relationship twenty-five years speaking; of not the fact bitter ownership lot; deeding never claimed an interest defendant credibility; plaintiffs plaintiff; defendant’s lack of and the the lot to the majority general Nor does the consider use of the lot as an exclusive owner. simply possibility referencing prior litigation, the court was that in during closing argument, crediting suggestion counsel plausibly deny when she that she was on notice that the defendant cannot First, placed a cotenant on constructive notice possessor when she is aware that the adverse takes common land from the outset under an exclusive claim rather than an right, as avowed cotenant. This occurs when, example, possessor for takes the land under title, exclusive color of or when she is ignorant of the cotenancy. existence of the that, rule in order “[T]he to amount to an ouster of his cotenants, acts of the possessor must be open of the most and notorious character, clearly possess- notice . . . that the giving or’s intention is to exclude his cotenant . . . has no application to one whose commenced nei- avowedly ther aas cotenant nor under an instrument his interest defining Annot., to be that of a cotenant.” supra, 82 A.L.R.2d 41. In situations, those § majority entry rule is that “in the case of an hostile inception its much less evidence is needed to establish that legally possessor’s is adverse to the . Id., p. 167; 2d, cotenants . . .” see also 3 Am. Jur. Adverse Possession (2002). 201§

In the case of common land taken under color of title Crofoot, supra, in Lucas v. 95 Conn. this court 626-27, conveyance held that a quitclaim cotenant’s of a deed purporting to confer exclusive title was tantamount to adversely the grantees ouster so that held the land to explained the other cotenants. We “[w]hen grantees pos recorded this deed and entered and took thereunder, presumed session their is have been under the deed itself and not under the title Id., Saad, v. 624; Hagopian of the cotenants.” see also supra, (plaintiffs possession 124 Conn. 259 was refer Beckwith, under he v. held); able to deed which White A. 79, 82, presumption 62 Conn. (1892) (legal essentially adversity alleged in her own action that the same had existed short, majority at I no that the has tried since least 1982. see indication evidence, therefrom, give and drawn the most favorable inferences verdict, required by of the as our law. reasonable construction land occupying and entering in common that tenant conformity with deed exclusively takes in openly 193-94 Vaughan, Clark owner); as sole solely to find ouster was authorized (jury (1819) to hold entire claim possession’s of cotenant basis acknowledging While by partition deed). estate “ only that title conveys ‘right, quitclaim a deed ” necessarily and so is not grantor, held interest’ Crofoot, supra, cotenancy; Lucas inconsistent with under holding concluded that 624; we nevertheless “ show the proof can be quitclaim ‘good [adverse] ” Id., . . . .’ 625. occupancy nature quitclaim deed majority notes, correctly, that present case from the one in Lucas differed grantor in Lucas recited that that the deed Id. I do property. interest in the acquired outstanding all stronger evidence provides that such a deed dispute not land as sole owner intends to take the grantee that the deed, pres- as in the quitclaim a conventional than does conveys and title as merely right which such case, ent property.14 present pur- For holds in the grantor a con- question is whether poses, however, the relevant majority quitclaim Although agree deed in Lucas I with the present case, stronger I believe color of title than the deed conferred proposition taking that established the broader that Lucas nevertheless provide any quitclaim of at least some indication of deed can under color property exclusively. grantee’s intent to hold the opinion, majority suggests, that I in footnotes 19 and 25 of its The also present wit, legal significance,” ignoring to that am “an essential fact indicating or descent records contained a certificate of devise case the land defendant, only plaintiff Percoski, and the that Doris the mother of both upon passing acquired The of her husband. one third of the lot possession, rightful alleges not a claim of owner- a claim of adverse action prove possession, ship. that she had a she need not To establish adverse lot, the lot legal right had a reasonable belief that to the or even that she exclusively. only prove to hold the lot need that she intended was hers. She gave she believed under color of a deed that The fact that she took the lot own, regardless the lot as her demonstrates that intent to hold her full title addition, might have been. In unreasonable that belief of how reasonable or cotenant, defendant, plaintiff prove was on notice of that the her must exclusively. Again, if the defendant believed to hold the lot her intent quitclaim deed, ventional which is nevertheless by convey property, believed all to full title to the provides any support evidence to the trial court’s find- ing that the intended to hold the land exclu- sively and that the defendant was under no illusion otherwise. I believe that it does.

In Lucas this court itself, prior relied a Connecti cut v. case, Cady Fitzsimmons, 50 Conn. in which a deed that was

(1882), described the court simply “presumably quitclaim” Lucas as was held adversity to demonstrate the of the grantee’s holding thereunder. Lucas v. Crofoot, supra, 95 Conn. 625. Indeed, Lucas, the court in v. citing Rogers Hillhouse, 398, 403 emphasized “any evidence (1820), prove to conducing accompa was title, nied with a claim of and that it was the intention possessor exclusively himself, to hold for was undoubtedly pos admissible to title added; quotation session.” internal marks (Emphasis omitted.) Crofoot, supra, Lucas 625. The decision in Rogers is also instructive that it clarifies that a deed may that cannot itself confer title nonetheless be legal proof, occupancy, the nature of the “good [show] Rogers Hillhouse, supra, and that it was adverse.” Indeed, parol declarations, accompa 403-404. “[e]ven entry evidence, an . . . have been held nying good possession.” Id., evince the character of a [adverse] very explained Lucas, At as we hold least, 404.15 the quitclaim places of title deed an ing under color acquired mother, if knew that full title from their and she that, also believed then the defendant was on notice of the party easily plaintiff’s adverse intent. The fact that either could have discov- by inspecting to a claim ered the truth the land records would be relevant questions rightful legal ownership bearing at issue here. but has no on the 15 majority, present attempting distinguish while Lucas from the case, neglects to discuss of the other Connecticut cases or the cases jurisdictions opinion, support dissenting which from other that I cite this quitclaim a deed can confer color of title suffi the commonsense rule that support possession that cient to a claim of adverse when all believe conveys Moreover, my disagree setting aside the deed exclusive title. even duty to make affirmative on cotenants out . . . support a “hostile move in of their own title Crofoot, supra, v. 626. Lucas jurisdictions expressly have that a Other concluded quitclaim provide conventional deed can evidence that adversely thereunder intended to hold grantee cotenants, when the circumstances indicate that the convey full parties understood the deed to title to the property. See, Gigger White, 68, v. 277 Ga. 71 and e.g., n.3, 586 S.E.2d 242 deed to cotenant (2003) (quitclaim sufficient to establish color of title where ignorance sole owner); believed to be Bel Man grantee grantor 234 La. So. 2d 58 deed uel, 135, 142, 99 (1958) (quitclaim only “the vendor’s title and interest conveying right, adequate in land . . . will be considered . . . prescriptive title where there is contained nothing in the deed itself which would create doubt in the mind vendee that the vendor’s interest did not extend to the whole property”); Warner, Scramlin 69 Wn. 6, 10, 2d 416 P.2d 699 deed in (1966) (“The question property described all the he grantor] thought [the quitclaim owned. The fact that it was in form demon warranties, any strates that he gave no not that pass. less than all the was intended to thing authority proposition are aware no for the [We of] statutory quitclam color of title cannot be when a gained deed is used . . . see .”); annot., supra, also 82 A.L.R.2d entry conveyance pur made under a (“[a]n § seemingly to vest in the porting taker, completing him, ordinarily exclusive title to the char premises, his in law acterizes as fact and his [emphasis annot., supra, cotenants” added]); A.L.R.2d (“[where] the circumstances show § possessor’s knowledge cotenants had or notice was not taken as that of a cotenant majority scope Lucas, with ment as to the of the rule established Cady Rogers, it is clear that no Connecticut case has ever held that a quitclaim present provide deed such as the one in the case cannot color of ground possession. title sufficient to a claim of adverse

625 purporting but rather in reliance on an instrument the adverse character possessor title, exclusive give law, both in fact and in becomes possession, of the fully apparent”). party that a does not take

Courts have also found cotenant, of common as and there- may possession, ouster sole through fore establish existence of the initially ignorant when he is of the cotenancy. Annot., supra, 162, 82 A.L.R.2d 40. The § party that when a is not aware rationale for this rule is cotenant, that he is a there is no reason to think that possessory performed his acts are for the benefit his cotenants are aware that cotenants. And where such, they, turn, he not them as are perceive does adversity possession. Moreover, notice of the of his would knowledge actual of disseisin “[requiring principle prescription of much of its deprive controversy value in sanction to quieting giving continued . . . dormant claims to long usages. Long history many the dust bin of title could rise from inter- (Citation omitted; titles would become unsettled.” 17 Batchelder, nal marks Allen v. quotation omitted.) 129, denied, N.E.2d review App. 453, 457, Mass. 459 Accordingly, N.E.2d 1374 a (1984). 391 Mass. 462 traditionally very jurisdictions number of that have set possession against bar for adverse high establishing parties are exception cotenant make an where both cotenancy.16 initially ignorant majority that Connecticut law suggests Although cotenants permit among does not Co., (“[t]his (1927) Pebia v. Hamakua Mill e.g., Haw. See, character of that evidence of ouster or the adverse court has held always strang co-tenants than as between a claim must be much clearer as between stringent gone it so far as to hold that . . . the more but has never ers, recognition where there is no rule to cases of co-tenancy applies applicable Wilcox, co-tenancy”); Chambers knowledge of a of the existence 16,1905) (quieting (Ohio *10-13 Common Pleas January Ohio Misc. LEXIS 48, ignorance, notwithstanding usual Ohio rule cotenant title against through other cotenants overt, cotenants may only adversely possess repeatedly upheld this court has ignorance,17 findings See,

of adverse under those circumstances. ouster, proceeded unmistakable acts of all because where for years assumption owner, on that was exclusive there had been no notify need or cause for him to defendants of his intention to continue in capacity). that 17 majority Woodruff, (1862), contends that v. Newell 30 Conn. 492 a possession issue, case in which adverse was not even at holds that ouster possible disagree. ignorance. is not between cotenants in I was an Newell predicated solely seeking damages ejectment, vague action for letters attorney defendant, proof suggesting had sent to the without “ ” specificity ‘perhaps’ possession or was entitled to of a part property. Id., affirming granting nonsuit, of the 499.In the trial court’s explained unjust subject we that it would be to the defendant “to the cost damage (1) detailing and demanded in an action of disseizin” without first: plaintiffs claims; formally possession (2) requesting the basis of the land; (3) affording adequate opportunity grant the defendant an to deny Id., Accordingly, although suggest access. 498. the case does knowledge necessary dispossession occur, of one’s cotenant status is for to specific ejectment action, it does so in the context of an where it would be unjust penalize party possession disseizing to for a cotenant whom actively possession. she never knew existed and had never barred from words, court, quite reasonably, imposed requirement other a mens rea may damages resulting alleged before a cotenant be found liable for from an Silano, 299, 302, (1932) ouster. See v. Giannattasio 115 Conn. 161 A. 336 (Newell proposition “[wjhere person premises occupying stands for a is own, title, ignorance as his in the belief that he has an exclusive rights person common, of another as tenant in it is unreasonable that subjected damage he should be to the cost and demanded in an action of disseizin, apprised precision until the demandant has him with reasonable quotation omitted]). of the nature of his claim” marks [internal applied There is no indication in NeweU that the court would have party possession merely long quiet same standard where a seeks to title majority relationship in herself. The asserts that the close between actions ejectment possession—both for and actions for adverse revolve a around language opinion, claim of disseisin—means that from the NeweU and its syllabus, necessarily applies ejectment. to adverse as well as to ejectment Although it is true that and adverse two are sides coin, always of the same the difference between heads and tails is not insignificant. NeweU, language In the case of the cited makes sense in unique ejectment action, party subject context of an where a is say damages. perverse, least, if, majority suggests, It would be as the require wrongful rewarding party the law were intent before with legal to land. title legal requirement Even if there were a that cotenants be aware of the cotenancy occur, not, before ouster can which I believe there is it would may cotenancy discovered, still be true that a cotenant be ousted once the may readily and that in such cases ouster be more established than when

627 154-55, Twarkins, supra, Ruick Conn. e.g., that mother finding 160-61 trial court’s (affirming adversely possessed beginning land her children against unaware of their that she was notwithstanding Young, supra, claims until Standard Co. v. 1972); 136-37 where (finding Conn. dower, pur- cotenant with her children via widow, as third ported party); to sell entire to unaware Co., supra, Harrison v. International Silver predeces- ouster where defendant and its (finding acquired and held contested land under color of sors cotenancy twenty-six years for unaware of with title plaintiff); Hagopian Saad, supra, see also Conn. intent to disseize the true owner is (“[a] wrongful necessary possession”).18 not a element of adverse cotenancy cotenancy parties In a that arises the knew of the from the outset. parties, quo expectation knowledge an that with the of ail the status involves all, possesses the benefit of so that one cotenant with the consent and for exclusively seeking possess notifying of his a cotenant bears the burden By contrast, quo thereof. when the status has been such that both cotenants possession owner, parties in to be the exclusive believe the cotenant relationship parly’s to the land and the other cotenants does when that upon discovery cotenancy, change reasonable their of the the most not may possession assumption be that the remains under the circumstances Crofoot, supra, Williams, supra, 116; v. 20 U.S. Lucas adverse. See Ricard v. supra, Day case, 626;Bryan Atwater, (Conn.) v. 191.In that the 95 Conn. 5 actively possessory press their shifts to the ousted cotenants burden allegedly rights, holding in Newell that the ousted coten- consistent with the clearly asserting right v. his to the land. Newell ant bore the burden of Woodruff, supra, 498. 30 Conn. 18 unequivocally majority, having alleged bars that Connecticut law The single Supe possession ignorance, relies on a between cotenants in adverse Sup. 616, 618, opinion; Boynton, see Diamond v. 38 Conn. rior Court found, (1983); in which this court to dismiss all four cases A.2d precisely find, possession permitted adverse under those a trial court to majority’s reasoning argu here. The I fail to understand the circumstances. apply purported appears Newell rule does not under ment to be that the “special holds under circumstances” where the cotenant the majori theory fundamentally inconsistent with the color of title. But that is ty’s If, majority contends, reading stands for the Newell. as the Newell possible only party proposition when the that ouster of a cotenant is dispossess cotenants, wrongly possession knowingly his then intends to only apply why the land when his is the name on should that rule not very language from Newell on which This flies in the face of the records? holding, majority . . . where one is relies: can be no the “[T]here eqjoyment honestly supposes of that which he is his Newell Woodruff, 492, (1862). 30 Conn. emphasize I would further that in the cases in which this court has permitted finding among ignorance, of adverse cotenants in merely by way noting the to the court’s reference land records was possessory property the cotenant held the under color of title. That is precisely my Although present claim this case. it is true that in the case plaintiffs records, name was not the name on the land there was testimony undisputed at trial that neither the nor the defendant requires only was aware of that. Because the law is clear that ouster possessor holding believe that the would-be adverse exclu- sively, that is a distinction without difference. majority’s distinguish subsequent further efforts to the four cases implicitly rejected purported in which this court has Newell rule are unavailing. First, majority supra, Twarkins, contends that Ruick v. ignorance, Conn. was not in fact a case of cotenants because the plaintiff in that case knew that she had defrauded her husband his share majority ignores in the land. The the fact that the case was not between Rather, and her late husband. the defendants were three of daughters, who, present case, unknowingly acquired their four as in the had through Id., their father’s share the law of intestate succession. 151. The opinion quite makes clear that the did believe that she was the sole property upon death, owner of the her husband’s and that she was not aware daughters’ statutory period of her claims until the for adverse passed. Id., 154-55, 159. Second, majority contends that in the case of Harrison Interna- Co.,supra, tional Silver the court did not reach conclusion possessor’s knowledge ownership as to the defendant adverse of his Although when the ouster commenced. it is true that the court in expressly igno- Harrison never stated that the defendant held the land in cotenancy, case, by court, rance of the the facts of the as recited make cotenancy. it clear that the defendant could not have been aware of the conveyed plaintiffs’ guardian The land in was Harrison in 1873 reciting duly conveyance by a deed that he was authorized to make such Id., an order of the Court of Probate. 418. The themselves did not appointment guardian discover until 1886that certain defects the conveyance invalid, they rendered the 1873 and did not inform the defendant side, until sometime between 1898and 1900.Id. On the defendant’s the land passed purchaser through had from the 1873 to the defendant a series of conveyances, including mortgage record, a foreclosure. Id. Given that if barring possession among ignorance, there were a rule adverse cotenants in surely the court would have addressed the matter. Third, Young, supra, 133, in the case of Standard Co. v. 90 Conn. the majority relies on the fact that this court did not decide whether there had ouster, jury majority been an but rather remanded the case for a trial. The point Young plaintiff, misses the here. The trial court in found that the ignorance, acquired disputed property by a cotenant had the adverse possession. court, appeal, assuming This while that adverse properly found, improperly had been remanded the case it because had been jury. Id., If, however, tried to the court rather than before a 138-39. Here, supports that, the record a finding commencing plaintiff took and held the lot under deed believed, publicly represented, that and she afforded undisputed plaintiff her exclusive title. It is that the did initially acquire possess not the lot as an avowed they cotenant. Both were unaware that had each Constanty inherited a share of the their father, lot from Percoski, believing plaintiff pur- instead that the chased full title mother, to lot from her Doris Percoski.19 trial, plaintiff

At made clear that this was the possession. central basis for her claim of adverse When your asked “isn’t claim in this lawsuit . . . you acquired reason the title to the . . property from . you paid the defendant is because the taxes on the piece,” plaintiff replied: whole I “It’s because bought my it from assumption mother under the and she was— everyone assumption else was under the that she majority that, law, was correct in its view as a matter of impossible ignorance, Young as between cotenants the court in would properly have neither assumed that adverse was found nor jury trial, ultimately remanded the matter for a because the not could prevailed. have majority Finally, remaining case, Hagopian Saad, declares the supra, problematic to be an “outlier.” This conclusion is Hagopian, seventy-five years because cotenant case decided more than Newell, explicitly wrongful after states that intent to disseize the true “[a] necessary possession.” Hagopian Saad, owner is not a element of adverse supra, express 259. Where an statement of the law in a later case conflicts implied legal principle with what can at best be described as an contained say explicit case, later, in an earlier it seems odd to that the more case is majority’s Adopting requires reading the outlier. view of the law not legal reasoning in into Newell a rule that is inconsistent with the court’s case, subsequently ignoring but also the law as we have stated and applied past century. it over the 19 majority appear emphasizes that the and her husband planted early have trees in the 1980s so as to wall off the lot from their original regard, in this own home. The record does not reveal their intent whether, instance, they initially may planned for have to delineate the party. any event, sale to a third lot boundaries so as facilitate its later parties, throughout litigation it has never been the course of between the cotenancy suggested prior 1987. was aware of the totally.” plaintiff explained, The

owned it also response multiple questions attorney from her purchase regarding her of the lot from her mother, that February mortgage her mother, to her purchase price represented $9000, amount of the full market value of the lot at that time. The convey further testified that her mother intended to all plaintiffs crediting court, the lot to her. The trial testimony, expressly found that Percoski, “Doris believing [three lots] she held full title to after [Con- stanty conveyed Percoskfs] death, [two] lots ... conveyed [the defendant] [and] and her husband .... present plaintiff] [the lot at case] [the issue conveyances her .... husband At the time of these it appears [plaintiff siblings] and her were also [Doris Percoski] belief that was the sole owner of the real estate.”20 acquired

Consistent with her view that she all of the mother, lot from her that, testified after recording the deed in records, the land she insured the paid property, the full annual taxes due,21and leased seeking siblings’ out the without her consent. She further testified that both before and after 1987she emphasizing acted owner, as the sole that “I . . . my Accordingly, treated it as own.”22 the trial court plaintiffs complaint refers to the memorandum of decision from prior litigation in which the trial court concluded that “the evidence supports parties finding that all believed was the owner” [Doris Percoski] Constanty Larocque Percoski, Superior judicial Court, Percoski’s lands. Rockville, (February district of Tolland at Docket No. CV-97-0063927-S 18, 2003). plain The assessment records of the town of Somers identified property. tiff and her husband as the owners of the testimony In the face of the clear trial that her claim of adverse acquired is based on the fact that all believed that she had though sole of the lot in 1980 and that she had acted as she forth, were the sole owner from that time I am at a loss to understand the majority’s continued insistence that there is “no evidence in the record that requisite 1987,” had the intent exclude the [to defendant] plaintiffs position that it is the that the defendant was not on notice thereof until 1997.

631 reasonably conveyed found that Doris Percoski the lot plaintiff to the in at 1980, parties which time both to present operated the action assumption under the plaintiff acquired the full title. is, moreover,

There no plaintiff indication that the abandoned her exclusive claim property to the in 1987 when she discovered “the cloud on title . . . .” [her] contrary, To the she pay continued to all of the taxes profits and to retain the lot, from the without seeking any permission or accounting from her siblings.23

The record is also devoid of evidence that the defen- any dant steps ever took affirmative to exercise her in the land. Once rights the discovered the cloud on the in title, any by the absence of change course plaintiff lay the onus on the defendant to indicate that she no intended longer quo. to abide the status See opinion. footnote 17 of this dissenting The defen- dant never volunteered to shoulder her share of the tax burden when she became aware of her interest twenty land in nor in subsequent years during plaintiffs negated claim to hold the lot under color of title is not that, upon discovering sought, the fact the cloud on the title in she success, varying siblings’ with to obtain her interests therein. Because the encourages peaceable expeditious property law resolution of dis putes, disputes efforts to settle such need not undermine a claim of exclusive ownership. Annot., supra, 84; Twarkins, §§ 82 A.L.R.2d 81 and v. Ruick supra, (affirming finding 171 Conn. 154 trial court’s of adverse papers sign relating where had asked defendants to to their interests Bryan Atwater, supra, Day land); (Conn.) posses (finding plaintiff subsequently acquired quitclaim sion where deeds from three cotenants). present case, expressly five its articulation the trial court plaintiff sought siblings’ found that the and—in some cases—obtained her property interests in the “in an lot effort to reach a settlement of the issues parties” ownership between the and not as “an . admission of . . .” This question fact, Annot., supra, was a on which we must defer to the trier. Moreover, unwillingness grant § 82 A.L.R.2d 84. the defendant’s her share plaintiff supports, undermines, plaintiffs of the lot to the rather than claim, hostility plaintiffs possession. because it indicates the See Bryan Atwater, supra, (“[i]f possession] be without the [the [owner’s] consent, against will, adverse”). his it is I possession. which the held sole would there- defer to the trial court’s factual finding fore purchase and use of the land afforded suffi- possession, notice of her claim to exclusive cient because, explained, as the court was no occa- “[t]here take sion for action exclude defendant from the since the defendant herself ownership gave no indication that she claimed an inter- any in est, nor did she believe she had interest . . . .” property until 1987 may A situation in which the of infer second trier fact enjoys ouster occurs where one cotenant an extended period uninterrupted possession of sole, during which possession any the cotenants fail out to seek account- profits. majority of or access to the land and its ing principle that this court embraced this recognizes Camp v. Camp, (1824), 302 wherein we adopted Doe ex dem. v. Prosser, Eng. Rep. Fishar 98 major- 1052 as Connecticut law.24Where the (K.B. 1774), ity part ways majority and I is that the apply would presumed principle developed ouster in Prosser and Camp only when the tenant “occupies property specific for a use, and obvious such as a parsonage,” significantly longer statutory for than the period. first the use of the

Considering property, Prosser, majority correctly a case the identifies as the leading one on the at subject,25 issue was character “lands,” ized as and there is no indication that the occupation any specific and were for obvious use. Doe ex dem. Fishar v. Prosser, supra, 98 Eng. Rep. Moreover, Prosser, 1052. Justice Aston 24 fact, adopted Bryan Atwater, we in the earlier Prosser case Day supra, (Conn.) 188. annot., supra, initial, decision, (“[t]he leading, See 82 A.L.R.2d 134 and presumed recognizing, defining, applying principle or inferred ouster, [Prosser]'"). emphasized primary pre evidence supporting sumption simply of ouster was that the defendant had enjoyed “uninterrupted receipt profits of the rents and without account . . . Id., 1053. Courts and commen tators, in defining for which Prosser principle stands, likewise have declined to impose any require ment that land be used in particular See, manner. Rickard, Rickard e.g., Mass. (13 Pick.) (1832) (“It is also now well settled, that a exclusive long and uninterrupted possession by one, any pos without session, profits or claim for by the other, is evidence jury may from which a to infer an actual ought ouster. Doe ex dem. Fishar v. Prosser, [supra, 1053].”); annot., supra, 82 A.L.R.2d 132, 37 (“[l]ong continued, § peaceable and undisturbed, unques and unshared and tioned and exclusive income without taking, acknowledgment cotenancy, [grounds] pre sumption ouster, or inference of or of grant of adverse 3 Am. Jur. possession”); 2d, supra, 207 (similar).26 § next the Considering length possession necessary of to implicate Prosser, this court implied has that there is no minimum beyond statutory require- time frame ment Bryan Atwater, possession. for adverse In v. 26Although agree property Camp actively I that the fact that the in was parsonage strengthened ouster, nothing used as a the defendants’ claim of specific precondition in that case indicates that such a use of the land is a applying Similarly, Bryan Day Atwater, supra, for the Prosser rule. in (Conn.) 188, although question developed land, in inwas fact quite any general terms, this court recited the Prosser rule without refer property: common, ence to the use of the one tenant in has been in “[I]f great years, any accounting a number of without to his fellow commoners, proper evidence, jury may this is from which the infer an possession.” Bryan that, Nothing suggests adopting adverse Prosser law, imposed requirement as Connecticut this court an additional any particular purpose. Bather, suggested land be used for the court simply example principle, equally general the Prosser rule is an applicable law, [possession] unaccompanied to landlord-tenant that “[i]f long standing, accounting with other acts . . . has been of without profits, may jury, for the rents and it be evidence to the of an adverse possession.” Id. Day predecessors the defendant’s supra, (Conn.) 182, years prior the contested land for seventeen to the held suit, during heirs’ initiation of fifteen which land in common.27 Relying held the as tenants rejected part Prosser, this court the trial court’s law, the defendant that, conclusion as matter could posses- acquired property through not have adverse period. Id., 187-88. during sion have likewise concluded that jurisdictions Other land for more than uninterrupted while use of common years pos- to establish adverse thirty-five is sufficient necessary by cotenant, that duration is not for session Prosser may reasonably trier of fact apply. Rather, presume sleeps that a cotenant who on her for rights more than two decades has abandoned her claim to the annot., supra, (“[Numer- land. See 82 A.L.R.2d 37§ hold, ous cases or affirm that if a cotenant recognize, enjoys sole, peaceable, and the undisturbed and occupancy period time, [twenty] for a such as for long years or . . . the facts and circumstances will longer . . an presumption . warrant a or inference that actual possessor’s ouster or disseisin of cotenants occurred, and that an adverse was accord- Myers Bartholomew, ingly cf. 91 N.Y.2d established”); 630, 632, 697 N.E.2d 674 N.Y.S.2d 259 (1998) (under presumption New York common-law statute, against possession by expires twenty cotenant after years possession).28 of sole Bryan, question siblings and their inherited the land in years entering pursuant from their father on his death. Several after the land bond, predecessors by quitclaim to a the defendant’s obtained deed the plaintiffs siblings, widow and two of the four but the interests of father’s Bryan Atwater, supra, Day (Conn.) relinquish their interests. v.

refused (recitation facts). 182-83 of justices Indeed, implied occupancy in Prosser itself several that a briefer Prosser, supra, supported the result. See Doe dem. Fishar ex could have Rep. jury might Eng. (Ashhurst, J.) (implying 1053-54 have found twenty-six years possession); id., (Mansfield, Lord) ouster based on of pur (relating hypothetical case to which tenant autre vie holds over for twenty years). reasonably

In trial court could present case, for ouster presumptive have found that the standards outlined in Prosser and its were satisfied. The progeny physical possession maintained sole of the land During time, from 1980until 2007. there is no indica- tion that the defendant ever entered or to enter sought lot, party requested onto the nor that either offered or twenty-seven years exclusive, an of accounting. Those peaceful possession represented nearly twice the statu- tory possession, minimum for establishing twenty year period jurisdictions well over the that most presumptive consider sufficient to demonstrate ouster. Moreover, the trial court found “no evidence that the [plaintiffs] use of lot . . . was done with the [the] permission.” defendant’s notice that a addition, joint hostile, cotentant’s and the property use will expectation that the cotenant out of seek an are where the latter accounting, heightened resides in the same and can be deemed neighborhood the land. Annot., to be aware of the former’s use of where the supra, Here, 82 A.L.R.2d 60.§ essentially were next-door the defendant neighbors, plaintiffs cannot claim to have been unaware of protracted and her failure to seek property, use of the an an accounting strongly suggests either access or I acquiescence possession. exclusive affirm the trial court’s determination would therefore sufficiently repudiated the that “reliable evidence ownership.” right defendant’s under Connecticut law Finally, it is well established may ouster, in the absence that the trier of fact find any under other notification, affirmative act of convincing clear and evi indicating circumstances hold intended to dence that the cotenant exclusively pos cotenants out of and the See notice thereof. session had actual or constructive Lucas Miller 49, 183 (1936); A. 17 State, v. 95 Conn. Crofoot, supra, 623-24; Goodwin v. Bragaw, supra, 87 Conn. 39-40; Bryan Atwater, Day v. supra, 5 192; see (Conn.) 2d, 206; also 3 Am. Jur. supra, see § generally annot., supra, 82 A.L.R.2d through §§52 76. example, For v. Williams, Ricard supra, U.S. 120- Supreme United States Court, applying Connecti law,29 cut common reversed the Circuit Court and found an adversely possessed heir had against his sibling cotenants when he took and held the land under a claim explained of exclusive title. The court that even in the absence of paper title, jury could have found “if they were satisfied, [the possessing was adverse to that of the heir’s] heirs, other and under a claim of title distinct from, or paramount to that of his father . . . .” Id., 122. The is, rationale for this rule again, presumption that the against finding ouster of a cotenant princi rests on the ple equal that cotenants share rights to their common property, so that use one is assumed to be with the consent and for the benefit of all. But where it becomes clear to the cotenants possession—and out of to the party trier of fact—that a has held the land not her capacity as cotenant, but under an exclusive claim of then the right, presumption against adversity is no longer applicable, the conventional rules of adverse possession should the case. govern

Here, I would affirm the trial court’s finding that, the unique facts of this case, readily can “[u]nder [one exclusively intended to use the infer] property and defendant is being disingenuous to [the] claim otherwise.” The trial court based this finding ouster on subsidiary several factual findings, including: (1) bitter, unsisterly relationship par- between the ties, spoken who had not early to each other since the Beattie, In Hewitt 602, 610, (1927), 106 Conn. 138 A. 796 we cited among Sanborn, Ricard a list of “our . .” Hewitt decisions . . See also 362, 372, 130 (1925) (relying on Ricard for Connecticut law). A. 472 history the including and their of

1980s; litigation, (2) adversely two possess action to defendant’s successful very from “under similar facts.” lots the these majority dispute supports not that the record does that subsidiary Rather, majority contends findings. the not the trial court’s conclu- these do findings notice, that was on constructive sion the defendant to oust her. I plaintiffs disagree. after intent prior parties, defen- In the action between the the the at issue in that case dant’s use of two lots alleged closely paralleled plaintiffs the use of the lot in the the present acquired she and recorded title to case: taxpayer record, paid the of property, was listed as sole performed on lawn and property, mowing taxes the leased the annu- general maintenance, related and lots county fair. ally to the See Collens New Canaan 234 A.2d 825 Co., 477, 496, (1967) Water brief admissible legal against admissions (attorney’s & J. Connecticut Evidence client); Daly, B. Holden and 1038 104d, pp. (same). 103a and (1988) §§ facts, alleged On the of those the defendant basis and the enjoyed she her husband had “used that and . . . use years for more than fifteen and such [land] open, notorious, times has been at all adverse, exclusive, continuous, uninterrupted . . sole thereby acquired and . now have [they] have . . . premises post- to the .’’In her and exclusive title further prior action, brief the defendant trial in that lots issue her exclusive use of the at averred that that the fact that case was demonstrated did anything “never sibling and the other cotenants use . . . never used the interfere with their payment to the . . . never contributed [and] . . defendant contended words, . .” In other taxes that, solely on defendant’s prior in the action based plain- plaintiffs thereof, lack use of land and not on notice she was welcome placed tiff was that land, and that the defendant had no intention of the land with her.30 sharing Inexplicably, present action, between the same two sisters who have not been on terms speaking for twenty-five more than years, where the plaintiffs use present the lot case has been a mirror image of the defendant’s prior use of the lots in the case, the defendant now suggests under those same circum- way stances she had no knowing she was unwel- come on the lot, or that the viewed exclusively it as her own. The trial court, heard having the testimony of both parties, rejected this sudden, self- serving change of perspective, concluding defendant “was under no illusion” that con- sidered her to be a cotenant on the land, and that she was “being disingenuous to claim otherwise.”31 The trial court was in the position best credibility make this and I assessment, would defer to the court’s factual that the finding intended to hold the lot as her own, and that the defendant was on notice thereof. Accordingly, respectfully I dissent. 30Significantly, though prior litigation place even took allegations prior case, defendant’s in that on which the and the trial present case, court relied in words, hearkened back to 1980. In other if holding always openly the defendant claimed 1997 that her been plaintiff, hostile to the then she cannot contend that she had been unaware plaintiffs mirror-image holding during was likewise hostile to her period. that same time 31 closing argument, plaintiffs specifically counsel referenced the history litigation between the as evidence that the defendant must plaintiffs intent, have been on notice of the hostile and further noted that

the defendant must have been aware of the claims based on the position prior defendant’s own action. It is therefore reasonable to theory infer that finding the court had this of the case in mind in that ouster had occurred.

Case Details

Case Name: O'Connor v. Larocque

Court Name: Supreme Court of Connecticut

Date Published: Nov 1, 2011

Citation: 31 A.3d 1

Docket Number: SC 18648

Court Abbreviation: Conn.